Contract
EXHIBIT 10.8
XXXXX
FARGO CONTINUING
GUARANTY
TO: XXXXX
FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to SunPower Corporation
("Borrowers"), or any of them, by XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank"), and for other valuable consideration, the undersigned SunPower North
America, LLC ("Guarantor"), jointly and severally unconditionally
guarantees and promises to pay to Bank or order, on
demand in lawful money of the United States of America and in immediately
available funds, any and all Indebtedness of any of the
Borrowers to Bank. The term "Indebtedness" is used herein in its
most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrowers, or any of them, heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, including
under any swap, derivative, foreign exchange, hedge, deposit, treasury
management or other similar transaction or arrangement, and whether Borrowers
may be liable individually or jointly with others, or whether recovery upon such
Indebtedness may be or hereafter becomes unenforceable. This Guaranty
is a guaranty of payment and not collection.
2. MAXIMUM
LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER
GUARANTIES. The liability of Guarantor shall not exceed at any time
the sum of (a) $50,000,000.00, (b)
all accrued and unpaid interest on any Indebtedness, and (c)
all costs and expenses pertaining to the
enforcement of this Guaranty and/or the
collection of the Indebtedness. Notwithstanding the foregoing, Bank
may permit the Indebtedness of Borrowers to exceed Guarantor's
liability. This is a continuing guaranty and all rights, powers and
remedies hereunder shall apply to all past, present and future Indebtedness of
each of the Borrowers
to Bank,
including that arising under successive transactions which shall either continue
the Indebtedness, increase or decrease it, or from
time to time create new Indebtedness after all or any prior Indebtedness has
been satisfied, and notwithstanding the
death, incapacity, dissolution, liquidation or bankruptcy of any of the
Borrowers or Guarantor or any other event or
proceeding affecting any of the Borrowers or Guarantor. This Guaranty
shall not apply to any new Indebtedness created
after actual receipt by Bank of written notice of its revocation as
to such new Indebtedness; provided however,
that loans or advances made by Bank to any of the Borrowers after revocation
under commitments existing prior to receipt by Bank of such revocation, and
extensions, renewals or modifications, of any kind, of Indebtedness incurred by
any of the Borrowers or committed by Bank prior
to receipt by Bank of such
revocation, shall not be considered new Indebtedness. Any such notice
must be sent to Bank by registered U.S. mail, postage prepaid, addressed to its
office at Peninsula Technology
RCBO, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000,
or at such other address as Bank shall from time to time
designate. Any payment by Guarantor with respect to the Indebtedness
shall not reduce Guarantor's maximum obligation hereunder
unless written notice to that effect is actually received by Bank at or prior to
the time of such payment. The obligations of Guarantor
hereunder shall be in addition to any obligations of Guarantor under any other
guaranties of any liabilities or obligations of any of the Borrowers or any
other persons heretofore or hereafter given to Bank
unless said other guaranties are expressly modified or revoked in writing; and
this Guaranty shall not, unless expressly herein
provided, affect or invalidate any such other guaranties.
3. OBLIGATIONS
JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS;
REINSTATEMENT OF LIABILITY. The obligations hereunder are joint and
several and independent of the obligations of Borrowers, and a separate action
or actions may be brought and prosecuted against Guarantor whether action is
brought against any of the Borrowers or any other person, or whether any of the
Borrowers or any other person is joined in any such
action or actions. Guarantor acknowledges that this Guaranty is
absolute and unconditional, there are no conditions precedent
to the effectiveness of this Guaranty, and this Guaranty
is in full force and effect
and is binding on Guarantor as of the date written below, regardless of whether
Bank obtains collateral or any guaranties
from others or takes any other action contemplated by
Guarantor. Guarantor
waives the benefit of any statute of limitations affecting Guarantor's liability
hereunder or the enforcement thereof, and Guarantor
agrees that any payment of any Indebtedness or other act which shall
toll any statute of limitations
applicable thereto shall similarly operate to toll such statute of limitations
applicable to Guarantor's liability hereunder. The liability of
Guarantor hereunder shall be reinstated and revived and the
rights of Bank shall continue if and to the extent
for any reason any amount at any time paid on account of any
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Indebtedness
guaranteed hereby is rescinded or must otherwise be restored by Bank, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, all as
though such amount had not been paid. The determination as to whether
any amount so paid must be rescinded or restored shall be made by Bank in its
sole discretion; provided however, that if Bank chooses to contest any such
matter at the request of Guarantor, Guarantor agrees to
indemnify and hold Bank harmless from and against all costs and expenses,
including reasonable attorneys' fees, expended or incurred by Bank in connection
therewith, including without limitation, in any litigation with
respect thereto.
4. AUTHORIZATIONS
TO BANK. Guarantor authorizes Bank either before or after revocation
hereof, without notice to or demand on Guarantor, and
without affecting Guarantor's liability hereunder, from time to
time to: (a) alter, compromise, renew, extend,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of, the Indebtedness or any portion thereof, including increase or
decrease of the rate of interest
thereon; (b) take and hold security for the payment of this Guaranty or the
Indebtedness or any portion thereof, and exchange, enforce, waive, subordinate
or release any such security; (c) apply such security
and direct the order or manner of sale
thereof, including without limitation, a non-judicial sale permitted by the
terms of the controlling security
agreement, mortgage or deed of trust, as Bank in its discretion may determine;
(d) release or substitute any one or more of the
endorsers or any other guarantors of the Indebtedness, or
any portion thereof, or any other party
thereto; and (e) apply payments received by Bank from any of the
Borrowers to any Indebtedness of
any of the Borrowers to Bank, in such order as Bank shall determine in its sole
discretion, whether or not such Indebtedness is covered by this Guaranty, and
Guarantor hereby waives any provision
of law regarding application of
payments which specifies otherwise. Bank may without notice assign
this Guaranty in whole or in
part. Upon Bank's request, Guarantor agrees to provide to Bank copies
of Guarantor's financial statements.
5. REPRESENTATIONS
AND WARRANTIES. Guarantor represents and warrants to Bank that: (a)
this Guaranty is executed at Borrowers' request; (b) Guarantor shall not,
without Bank's prior written consent, sell, lease,
assign, encumber, hypothecate, transfer or otherwise dispose of all or a
substantial or material part of Guarantor's assets other than in the ordinary
course of Guarantor's business; (c) Bank has made
no representation to Guarantor as to the
creditworthiness of any of the Borrowers; and (d) Guarantor
has established adequate means of
obtaining from each of the Borrowers on a continuing basis financial and other
information pertaining to Borrowers' financial condition. Guarantor
agrees to keep adequately informed
from such means of any facts,
events or circumstances which might in any way affect Guarantor's risks
hereunder, and Guarantor further
agrees that Bank shall have no obligation to disclose to Guarantor any
information or material about any of the Borrowers which
is acquired by Bank in any manner.
6. GUARANTOR'S
WAIVERS.
6.1 Guarantor
waives any right to require Bank to: (a) proceed against any of the
Borrowers or any other person; (b) marshal assets or proceed against or
exhaust any security held from any of the Borrowers or
any other person; (c) give notice
of the terms, time and place of any public or private sale or other disposition
of personal property security held from any of the
Borrowers or any other person; (d) take any action or pursue any other remedy in
Bank's power; or (e) make any presentment or demand for performance, or give any
notice of nonperformance, protest, notice of protest or notice of dishonor
hereunder or in connection with any
obligations or evidences of
indebtedness held by Bank as security for or which constitute in whole or in
part the Indebtedness guaranteed
hereunder, or in connection with the creation of new or additional
Indebtedness.
6.2 Guarantor
waives any defense to its obligations hereunder based upon or arising by reason
of: (a) any disability or other defense of any of the Borrowers or any other
person; (b) the cessation or limitation from any cause
whatsoever, other than payment in full, of the Indebtedness of any of the
Borrowers or any other person; (c) any
lack of authority of any officer, director, partner, agent or any other person
acting or purporting to act on behalf of any of the Borrowers which
is a corporation, partnership or other type of entity, or any defect in the
formation of any such Borrower; (d) the application by any of the Borrowers of
the proceeds of any Indebtedness for purposes other
than the purposes represented by Borrowers to, or intended or understood by,
Bank or Guarantor; (e) any act or omission by Bank which
directly or indirectly results in or aids the discharge of any
of the Borrowers or any portion of the
Indebtedness by operation of law or otherwise, or which in any way impairs
or
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suspends
any rights or remedies of Bank against any of the Borrowers; (f) any
impairment of the value of any interest in any security for the Indebtedness or
any portion thereof, including without limitation, the failure
to obtain or maintain perfection or
recordation of any interest in any such security, the release of any such
security without substitution, and/or the failure to preserve the value of, or
to comply with applicable law in disposing
of, any such security; (g) any modification
of the Indebtedness, in any form whatsoever, including any
modification made after revocation hereof to any Indebtedness
incurred prior to such revocation, and including
without limitation the renewal, extension,
acceleration or other change in time for payment of, or other change in
the terms of, the Indebtedness or any
portion thereof, including increase or decrease of the rate of interest
thereon; or (h) any requirement
that Bank give any notice of acceptance of this Guaranty. Until all
Indebtedness shall have been paid in
full, Guarantor shall have no right of subrogation, and Guarantor waives any
right to enforce any remedy which Bank
now has or may hereafter have against any of the Borrowers or any other person,
and waives any benefit of, or any right to participate in, any security now or
hereafter held by Bank. Guarantor further waives all rights and
defenses Guarantor may have arising out of (i) any election of remedies by Bank,
even though that election of remedies, such as a
non-judicial foreclosure with respect to any security for any portion
of the Indebtedness, destroys Guarantor's rights of
subrogation or Guarantor's rights to proceed against any of the Borrowers for
reimbursement, or (ii) any loss of rights Guarantor may suffer by reason of
any rights, powers or remedies of any of the Borrowers in connection with any
anti-deficiency laws or any other laws limiting,
qualifying or discharging Borrowers' Indebtedness,
whether by operation of Sections 726, 580a or 580d of the Code of Civil
Procedure as from time to time amended, or otherwise, including any rights
Guarantor may have to a Section 580a fair
market value hearing to determine the size of a deficiency following any
foreclosure sale or other disposition of any real property security
for any portion of the Indebtedness.
7. BANK'S
RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN BANK'S
POSSESSION. In addition to all liens upon and rights of
setoff against the monies, securities or other property of Guarantor given to
Bank by law, Bank shall have a lien upon and a right of setoff against all
monies, securities and other property of Guarantor now or hereafter in the
possession of or on deposit with Bank, whether held in a general or
special account or deposit or for safekeeping or otherwise, and every
such lien and right of setoff may be
exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Bank,
or by any neglect to exercise such right of setoff or to enforce such
lien, or by any delay in so
doing, and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is
specifically waived or released by Bank in writing.
8. SUBORDINATION. Any
Indebtedness of any of the Borrowers now or hereafter held by Guarantor
is hereby subordinated to the Indebtedness of Borrowers to
Bank. Such Indebtedness of Borrowers to Guarantor is assigned to Bank
as security for this Guaranty and the Indebtedness and, if Bank requests, shall
be collected and received by
Guarantor as trustee for Bank and paid over to Bank on account of the
Indebtedness of Borrowers to Bank but without
reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty. Any notes or other
instruments now or hereafter evidencing such Indebtedness
of any of the Borrowers to Guarantor
shall be marked with a legend that the same are subject to this Guaranty
and, if Bank so requests, shall be
delivered to Bank. Bank is hereby authorized in the name of Guarantor from time
to time to file financing statements and continuation statements and
execute such other documents and take such other action as Bank
deems necessary or appropriate to perfect, preserve and enforce its rights
hereunder.
9. REMEDIES;
NO WAIVER. All rights, powers and remedies of Bank hereunder are
cumulative. No delay, failure or discontinuance of Bank in exercising
any right, power or remedy hereunder shall affect or operate as a waiver of such
right, power or remedy; nor shall any single or partial exercise of any such
right, power or remedy preclude, waive or otherwise affect any other or further
exercise thereof or the exercise of any other right,
power or remedy. Any waiver,
permit, consent or approval of any kind by Bank of any breach of this Guaranty,
or any such waiver of any provisions or conditions
hereof, must be in writing and shall be effective only to the extent
set forth in writing.
10. COSTS,
EXPENSES AND ATTORNEYS' FEES. Guarantor shall pay to Bank immediately
upon demand the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys' fees (to include outside counsel fees
and all allocated costs of Bank's in-house counsel), expended or incurred by
Bank in connection with the
enforcement of any of Bank's rights, powers or remedies and/or the collection of
any
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amounts
which become due to Bank under this Guaranty, and the prosecution or defense of
any action in any way related to this
Guaranty, whether incurred at the trial or appellate level, in an arbitration
proceeding or otherwise, and including any of the foregoing
incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought by Bank
or any other person) relating to Guarantor or any other person or
entity. All of the foregoing shall be paid by Guarantor with
interest from the date of demand until paid in full
at a rate per annum equal to the greater of ten percent (10%) or Bank’s Prime
Rate in effect from time to time.
11. SUCCESSORS;
ASSIGNMENT. This Guaranty shall be binding upon and inure to the
benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided however, that Guarantor may not
assign or transfer any of its interests or rights hereunder without Bank's prior
written consent. Guarantor acknowledges that Bank has the right to
sell, assign, transfer, negotiate or grant participations in all
or any part of, or any interest in, any Indebtedness of
Borrowers to Bank and any obligations with respect thereto, including this
Guaranty. In connection therewith, Bank may disclose all documents
and information which Bank now has or hereafter acquires
relating to Guarantor and/or this Guaranty, whether furnished by
Borrowers, Guarantor or otherwise. Guarantor further
agrees that Bank may disclose such documents and information to
Borrowers.
12. AMENDMENT. This
Guaranty may be amended or modified only in writing signed by Bank and
Guarantor.
13. OBLIGATIONS
OF MARRIED PERSONS. Any married person who signs this Guaranty as a
Guarantor hereby expressly agrees that recourse may be had against his or her
separate property for all his or
her obligations under this
Guaranty.
14. APPLICATION
OF SINGULAR AND PLURAL. In all cases where there is but a single
Borrower, then all words used herein in the plural shall be deemed to have been
used in the singular where the context and construction so require; and when
there is more than one Borrower named herein, or when this Guaranty
is executed by more than one Guarantor, the word "Borrowers"
and the word "Guarantor" respectively shall
mean all or any one or more of them as
the context requires.
15. UNDERSTANDING
WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor
warrants and agrees that each of the waivers set forth herein is made with
Guarantor's full knowledge of its significance and consequences, and that under
the circumstances, the waivers are reasonable and not
contrary to public policy or
law. If any waiver or other provision of this Agreement shall be held
to be prohibited by or invalid under
applicable public policy or law, such waiver or other provision shall be
ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such waiver or
other provision or any remaining provisions of this
Agreement.
16. GOVERNING
LAW. This Guaranty shall be governed by and construed in accordance
with the laws of the State of California.
17. ARBITRATION.
17.1 Arbitration. The
parties hereto agree, upon demand by any party, to submit to binding arbitration
all claims, disputes and controversies between or among
them (and their respective employees, officers, directors, attorneys, and other
agents), whether in tort, contract or otherwise, in any way arising out of or
relating to this Guaranty and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination.
17.2 Governing
Rules. Any arbitration proceeding will (a) proceed in a
location in California selected by the American Arbitration Association (“AAA”);
(b) be governed by the Federal Arbitration Act (Title 9 of the
United States Code), notwithstanding any conflicting
choice of law provision in any of the documents between
the parties; and (c) be conducted by
the AAA, or such other administrator as the parties shall mutually agree
upon, in accordance with
the AAA’s commercial dispute resolution procedures, unless the claim or
counterclaim is at least $1,000,000.00 exclusive of
claimed interest, arbitration fees and costs in which case the arbitration shall
be
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conducted
in accordance with the AAA’s optional procedures for large, complex commercial
disputes (the commercial dispute resolution procedures or the
optional procedures for large, complex commercial disputes
to be referred to herein, as
applicable, as the “Rules”). If there is any inconsistency between
the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or
refuses to submit to arbitration following a demand by any other party shall
bear all costs and expenses incurred by such other
party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by
any party that is a bank of the protections
afforded to it under 12 U.S.C. §91 or any similar applicable state
law.
17.3 No Waiver of Provisional
Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (a) foreclose against real
or personal property collateral; (b) exercise self-help remedies relating to
collateral or proceeds of collateral such as setoff or repossession; or (c)
obtain provisional or ancillary remedies such as replevin, injunctive relief,
attachment or the appointment of a receiver, before during or
after the pendency of any
arbitration proceeding. This exclusion does not constitute a waiver
of the right or obligation of any party to
submit any dispute to arbitration or reference hereunder, including those
arising from the exercise of the actions
detailed in sections (a), (b) and (c) of this paragraph.
17.4 Arbitrator Qualifications
and Powers. Any arbitration proceeding in which the amount in
controversy is $5,000,000.00 or less will be decided by a single arbitrator
selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any dispute in which the amount
in controversy exceeds $5,000,000.00 shall be decided by majority vote of a
panel of three arbitrators; provided however, that all three arbitrators must
actively participate in all hearings and deliberations. The
arbitrator will be a neutral attorney licensed in the State of
California or a neutral retired judge of the state or federal judiciary of
California, in either case with a minimum of ten years
experience in the substantive law applicable to the subject matter of
the dispute to be
arbitrated. The arbitrator will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation
in determining any claim. In any arbitration proceeding the
arbitrator will decide (by documents only or with a hearing at the arbitrator's
discretion) any pre-hearing motions which are similar
to motions to dismiss for failure to state a claim
or motions for summary adjudication. The arbitrator shall resolve all
disputes in accordance with the substantive law of California and may grant any
remedy or relief that a court of such state could order
or grant within the scope hereof and such ancillary relief as is necessary to
make effective any award. The arbitrator shall also have
the power to award recovery of all costs and fees, to impose
sanctions and to take such other action as the arbitrator deems
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the California Rules of Civil Procedure or other applicable
law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or
pursuit of a provisional or ancillary remedy shall not constitute
a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
17.5 Discovery. In
any arbitration proceeding, discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly
relevant to the dispute being arbitrated and must be completed no
later than 20 days before the hearing date. Any requests for an
extension of the discovery periods, or any discovery
disputes, will be subject to final determination by the arbitrator upon a
showing that the request for discovery is
essential for the party's presentation and that no alternative means for
obtaining information is available.
17.6 Class Proceedings and
Consolidations. No party hereto shall be entitled to join or
consolidate disputes by or against others in any arbitration, except parties who
have executed this Guaranty or any other contract, instrument
or document relating to any Indebtedness, or to include in any arbitration any
dispute as a representative or member of a class, or to
act in any arbitration in the interest of the general public or in a private
attorney general capacity.
17.7 Payment Of Arbitration Costs
And Fees. The arbitrator
shall award all costs and expenses of the arbitration
proceeding.
17.8 Real Property Collateral;
Judicial Reference. Notwithstanding anything herein to the
contrary, no dispute shall be submitted to arbitration if the dispute concerns
indebtedness secured directly or indirectly, in whole or in
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part, by
any real property unless (a) the holder of the mortgage, lien or security
interest specifically elects in writing
to proceed with the arbitration, or (b) all parties to the arbitration waive any
rights or benefits that might accrue to them by virtue of the
single action rule statute of California, thereby agreeing that all indebtedness
and obligations of the parties, and all mortgages, liens and security interests
securing such indebtedness and obligations, shall remain fully
valid and enforceable. If any such dispute is not submitted to
arbitration, the dispute shall be
referred to a referee in accordance with California Code of Civil Procedure
Section 638 et seq., and this general reference
agreement is intended to be specifically enforceable in accordance with said
Section 638. A referee with the qualifications
required herein for arbitrators shall be selected pursuant to the
AAA’s selection procedures. Judgment upon the
decision rendered by a referee shall be entered in the court in
which such proceeding was commenced in accordance with
California Code of Civil Procedure Sections 644 and 645.
17.9 Miscellaneous. To
the maximum extent practicable, the AAA, the arbitrators and the parties shall
take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the
AAA. No arbitrator or other party
to an arbitration proceeding may disclose the existence, content or results
thereof, except for disclosures of information by a party
required in the ordinary course of its business or by applicable
law or regulation, or to the extent necessary to exercise
any judicial review rights set forth herein. If more than one
agreement for arbitration by or between the parties potentially applies to a
dispute, the arbitration provision most directly related to the documents
between the parties or the subject matter of the dispute shall
control. This arbitration provision shall survive termination,
amendment or expiration of any of the documents or
any relationship between the
parties.
17.10 Small Claims
Court. Notwithstanding anything herein to the contrary, each
party retains the right to pursue in Small Claims
Court any dispute within that court’s jurisdiction. Further, this
arbitration provision shall apply only to disputes in which
either party seeks to recover an amount of money (excluding attorneys’ fees and
costs) that exceeds the jurisdictional limit of the Small Claims
Court.
IN
WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of
March 20,
2009.
SunPower
North America, LLC
By:
SunPower Corporation, Member
By: /s/ Xxxxxx X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx, Chief Financial Officer
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