FOURTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.1
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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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FOURTH
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT
(this "Amendment") is entered into as of April 4, 2008, by and between SUNPOWER
CORPORATION, a Delaware corporation ("Borrower"), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted
to Bank pursuant to the terms and conditions of that certain Credit Agreement
between Borrower and Bank dated as of July 13, 2007, as amended by that certain
First Amendment to Credit Agreement, dated August 14, 2007, that certain Second
Amendment to Credit Agreement, dated August 31, 2007, that certain Waiver
Agreement, dated January 18, 2008, and that certain Third Amendment to Credit
Agreement, dated February 13, 2008, and as may be amended from time to time
("Credit Agreement").
WHEREAS, Bank and Borrower have agreed
to certain changes in the terms and conditions set forth in the Credit Agreement
and have agreed to amend the Credit Agreement to reflect said
changes.
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that the Credit Agreement shall be amended as
follows:
1. Section
1.1 (a) is hereby amended by deleting "July 31, 2008" as the last day on which
Bank will make advances under the Line of Credit, and by substituting for said
date "April 4, 2009," with such change to be effective upon the execution
and delivery to Bank of a promissory note dated as of April 4, 2008 (which
promissory note shall replace and be deemed the Line of Credit Note defined in
and made pursuant to the Credit Agreement) and all other contracts, instruments
and documents required by Bank to evidence such change.
2. Section 1.2
(a) is hereby amended by deleting "Fifty Million Dollars ($50,000,000.00)" as
the maximum principal amount available under the Letter of Credit Line, and by
substituting for said amount "One Hundred and Fifty Million Dollars
($150,000,000.00)."
3. Section 1.3
(c) is hereby deleted in its entirety, and the following substituted
therefor:
“(c) Letter of Credit
Fees. Borrower shall pay to Bank (i) fees upon the
issuance and each annual renewal, if any, of each Letter of Credit equal to
two-tenths of one percent (0.20%) per annum (computed on the basis of a 360-day
year, actual days elapsed) of the face amount thereof, (ii) fees upon the
issuance of each Subfeature Letter of Credit equal to one percent (1.00%) per
annum (computed on the basis of a 360-day year, actual days elapsed) of the face
amount thereof, and (iii) fees upon the payment or negotiation of each
drawing under any Letter of Credit or Subfeature Letter of Credit and fees upon
the occurrence of any other activity with respect to any Letter of Credit or
Subfeature Letter of Credit (including without limitation, the transfer,
amendment or cancellation of any Letter of Credit or Subfeature Letter of
Credit) determined in accordance with Bank's standard fees and charges then in
effect for such activity. The standard
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fees and charges in effect as of the date hereof are set forth in Schedule 1.3
hereto.”
Schedule 1.3 is hereby deleted in its
entirety and Schedule 1.3 attached hereto is substituted therefor.
4. Sections 1.5
and 1.6 are hereby deleted in their entirety, and the following substituted
therefor:
“SECTION
1.5. COLLATERAL.
As security for all indebtedness of
Borrower to Bank in connection with Letters of Credit issued (or deemed issued)
under the Letter of Credit Line, Borrower shall grant to Bank security interests
in Borrower’s deposit account * * * maintained at Bank and Borrower’s investment
account * * * maintained at Bank, in each case with including renewals thereof,
together with all proceeds thereof.
All of
the foregoing shall be evidenced by and subject to the terms of a security
agreement dated as of the date hereof. Borrower shall pay to Bank
immediately upon demand the full amount of all charges, costs and expenses (to
include fees paid to third parties and all allocated costs of Bank personnel),
expended or incurred by Bank in connection with any of the foregoing
security.
SECTION
1.6. GUARANTIES. The
payment and performance of all indebtedness and other obligations of Borrower to
Bank under the Line of Credit shall be jointly and severally guaranteed by
SunPower Corporation, Systems (formerly known as PowerLight Corporation), a
Delaware corporation, SunPower North America, Inc., a Delaware corporation and
SunPower Systems SA, a Swiss corporation in the principal amount of Fifty
Million Dollars ($50,000,000.00) each, as evidenced by and subject to the terms
of a guaranty in form and substance satisfactory to Bank. Borrower
shall cause each newly-acquired or newly-formed Domestic Material Subsidiary (as
defined in Section 2.12) to execute a joinder to said guaranty within 30 days
after its qualifying as a Domestic Material Subsidiary. Each
Subsidiary which executes or is required to execute such guaranty or a joinder
thereto shall be referred to as a “Third Party Obligor.””
Borrower
shall deliver to Bank a legal opinion from Swiss counsel to SunPower Systems SA
in form and substance acceptable to Bank.
Borrower represents and warrants that Borrower is relying upon its
own expertise or has obtained independent advice with respect to tax law and
regulations concerning guarantees from foreign subsidiaries.
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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5. Section 4.3
(c) is hereby deleted in its entirety, and the following substituted
therefor:
"(c) not
later than 15 days after and as of the end of each month, bank and/or brokerage
statements reflecting compliance with the Liquidity covenant set forth in
Section 4.9 (a) below;"
6. Sections 4.9
(a), (b) and (c) are hereby deleted in their entirety, and the following
substituted therefor:
“(a) Minimum
Liquidity (defined as unencumbered and unrestricted cash, cash equivalents, and
marketable securities acceptable to Bank, which, if cash, is U.S. Dollar
denominated, or if held in an account not maintained in the United States, is
denominated in any currency for which a U.S. Dollar equivalent is routinely
calculated by Bank, and, if other than cash, consist of financial instruments or
securities, acceptable to Bank, collectively, “Eligible Assets”) equal to or
greater than two (2.00) times the Bank’s commitment under the Line of Credit
with a minimum of $75,000,000.00 of such liquidity to be held in accounts
maintained in the United States, determined as of the end of each calendar
month. For purposes of calculating U.S. Dollar equivalent value of
Eligible Assets not denominated in U.S. Dollars, Bank will convert the value of
such assets as of the applicable statement date based on Bank’s foreign exchange
closing rates for such date. Without limiting the foregoing,
"Eligible Assets" shall include Borrower's auction rate securities listed on
Schedule 4.9(a) (each such security, an “Auction Rate”), subject to the terms of
the next paragraph.
So long as Borrower maintains Minimum
Liquidity (including Auction Rates) equal to or greater than three (3.00) times
the Bank's commitment under the Line of Credit, Bank shall value each Auction
Rate at the market rate bid for such Auction Rate at each month’s end, as (i)
communicated to Bank by Xxxxx Capital Management Incorporated (“WCMI”), or (ii)
in the event that WCMI is unable to determine a market rate bid, as determined
and publicly announced by such other source as Bank in its sole discretion
considers acceptable. In the event that Borrower's Minimum Liquidity
(including Auction Rates) is less that three (3.00) times the Bank’s commitment
under the Line of Credit, Bank reserves the right to discount the WCMI (or, as
applicable, other source’s) value in Bank’s reasonable
discretion. The foregoing terms of this paragraph shall cease to be
effective at such time that Bank in good faith determines that liquidity has
been restored to the auction rate market in the United States and that the
auction rate securities market is functioning substantially as it did prior to
the current auction rate liquidity crisis. Following such
determination, "Eligible Assets" shall include Borrower's auction rate
securities to the extent permissible under Bank’s policies at such
time.
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(b) Total
Liabilities divided by Tangible Net Worth not greater than 2.00 to 1.0,
determined as of the end of each fiscal quarter, with "Total Liabilities"
defined as the aggregate of current liabilities and non-current liabilities less
subordinated debt, and with "Tangible Net Worth" defined as the aggregate of
total stockholders' equity plus subordinated debt less any intangible assets and
less any loans or advances to, or investments in, any related entities or
individuals. Without limitation of the foregoing, Total Liabilities
shall include the amount available to be drawn under all outstanding letters of
credit (including Letters of Credit) issued for the account of Borrower and/or
any Subsidiary.
(c) Net
Income after taxes not less than $1.00 in each period of four consecutive fiscal
quarters, determined as of each fiscal quarter end on a rolling 4-quarter basis,
and with “Net Income” defined as net income on a GAAP basis plus (i)
amortization of intangibles and in-process research and development expenses
related to the acquisition of PowerLight Corporation, a California corporation,
by Borrower on January 10, 2007, and (ii) any amortization of intangibles and or
one time charges due to permitted acquisitions after the date
hereof. Borrower shall not have a single quarterly net loss of more
than $35,000,000.00 or consecutive quarterly net losses in aggregate of more
than $35,000,000.00, in each case calculated on a GAAP basis as adjusted
herein.”
7. Section
4.10 is hereby deleted in its entirety and the following substituted
therefore:
SECTION
4.10. NOTICE
TO BANK. Promptly (but in no event more than ten (10) business days
after an officer of Borrower first has knowledge of the occurrence of each such
event or matter) give written notice to Bank in reasonable detail
of: (a) the occurrence of any Event of Default, or any condition,
event or act which with the giving of notice or the passage of time or both
would constitute an Event of Default; (b) any change in the name or the
organizational structure of Borrower or any Third Party Obligor; (c) the
occurrence and nature of any Reportable Event or Prohibited Transaction, each as
defined in ERISA, or any funding deficiency with respect to any Plan; (d) any
termination or cancellation of any insurance policy which Borrower or any Third
Party Obligor is required to maintain, or any uninsured or partially uninsured
loss through liability or property damage, or through fire, theft or any other
cause affecting Borrower's property which could reasonably be expected to have a
Material Adverse Effect, or (e) any request for Borrower to perform under the
terms of any guaranty permitted under Section 5.4(i).
8. Sections
5.2, 5.3 and 5.4 are hereby deleted in their entirety, and the following
substituted therefor:
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SECTION
5.3.
OTHER INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness or liabilities resulting from borrowings, loans or advances,
whether secured or unsecured, matured or unmatured, liquidated or unliquidated,
joint or several, except (a) the liabilities of Borrower or such Third Party
Obligor to Bank, and (b) Permitted Indebtedness. “Permitted
Indebtedness” shall mean (i) indebtedness of Borrower or a Third Party Obligor
to Borrower or any Subsidiary in the ordinary course of business,
(ii) indebtedness in favor of Solon AG and its affiliates under the
Amended and Restated Supply Agreement, dated as of April 14, 2005, as amended,
between Borrower and Solon AG fur Solartechnik; (iii) indebtedness in favor of
customers and suppliers of the Borrower and its Subsidiaries in connection with
supply and purchase agreements in an aggregate principal amount not to exceed
Two Hundred Million dollars ($200,000,000.00) at any one time and any
refinancings, refundings, renewals or extensions thereof (without shortening the
maturity thereof or increasing the principal amount thereof); (iv) 1.25% senior
convertible debentures issued in February 2007 in the aggregate principal amount
of Two Hundred Million dollars ($200,000,000.00) plus accrued interest thereon;
(v) obligations owed to Travelers Casualty and Surety Company of America and St.
Xxxx Fire and Marine Insurance Company, and their affiliates (collectively,
“Travelers”) in connection with obligations under the General Contract of
Indemnity with Travelers, pursuant to which Travelers issues bonds or otherwise
secures performance of Borrower and Subsidiaries for the benefit of their
customers and contract counterparties; (vi) 0.75% senior convertible debentures
issued in August 2007 in the aggregate principal amount of Two Hundred
Twenty-Five Million Dollars ($225,000,000.00) plus accrued interest thereon; and
(vii) additional indebtedness of Borrower and Third Party Obligors in an
aggregate principal amount not to exceed Fifty Million Dollars ($50,000,000.00)
outstanding at any one time.”
SECTION
5.4. GUARANTIES. Guarantee
or become liable in any way as surety, endorser (other than as endorser of
negotiable instruments for deposit or collection in the ordinary course of
business), accommodation endorser or otherwise for, nor pledge or hypothecate
any assets of Borrower or such Third Party Obligor as security for, any
liabilities or obligations of any person or entity, other than (i) in the
ordinary course of business (x) Borrower may guarantee the obligations of any
Third Party Obligor or any other Subsidiary, and (y) any Third Party Obligor may
guarantee (A) the obligations of Borrower or (B) the obligations of other Third
Party
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Obligors
or any other Subsidiary, in each case for any obligation other than obligations
for borrowed money, (ii) any guaranty in favor of Bank, (iii) and guaranties in
favor of Travelers Casualty and Surety Company of America and St. Xxxx Fire and
Marine Insurance Company (together with their affiliates, collectively,
“Travelers”) in connection with obligations
under the General Contract of Indemnity with Travelers, pursuant to which
Travelers issues bonds or otherwise secures performance of Borrower and
Subsidiaries for the benefit of their customers and contract counterparties, and
(iv) guaranties and liabilities that constitute Permitted
Indebtedness.
9. Section
5.5 is hereby deleted in its entirety, and the following substituted
therefor:
“SECTION 5.5. LOANS,
ADVANCES, INVESTMENTS. Make any loans or advances to or investments
in any person or entity, except (a) any of the foregoing existing as of, and
disclosed to Bank prior to, the date hereof, (b) additional loans or advances by
Borrower or such Third Party Obligor to employees and officers in the ordinary
course of business and in amounts not to exceed an aggregate of Five Million
Dollars ($5,000,000.00) outstanding at any time, (c) investments which are made
in accordance with Borrower’s Investment Policy as from time to time adopted by
its Board of Directors, (d) investments which constitute Specified Transactions,
as defined in Section 5.8, below, (e) any of the foregoing that constitute
Permitted Indebtedness, (f) advances to, or investments in, a Subsidiary or in
Woongjin Energy by Borrower or any Third Party Obligor in the ordinary course of
business; and (g)
prepayment of obligations to vendors and suppliers in the ordinary course in an
amount not to exceed Three Hundred Million Dollars
($300,000,000.00).”
10. Section
5.8 is hereby deleted in its entirety, and the following substituted
therefor:
“SECTION 5.8. SPECIFIED
TRANSACTIONS. Enter into any Specified Transaction with respect to
which the Total Non-Stock Consideration paid or payable by Borrower and/or any
Subsidiary exceeds Two Hundred Million Dollars ($200,000,000.00) in the
aggregate per fiscal year; provided, however, that Borrower and any Third Party
Obligor may enter into a Specified Transaction regardless of the value of Total
Non-Stock Consideration so long as such Specified Transaction involves no
unaffiliated third parties and involves only (i) the Borrower and one or more
Subsidiaries or (ii) two or more Subsidiaries. “Specified
Transaction” means any of the following, provided that the applicable
transaction has been approved by the Board of Directors of the entity (i) whose
assets or equity interests are being acquired, or (ii) which is merging with
Borrower or a Third Party Obligor:
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(a) the
acquisition by Borrower or a Third Party Obligor of all or substantially all of
the assets of another entity or division of such entity;
(b) the
merger or consolidation of any Third Party Obligor with or into any other
entity, provided that the surviving entity shall be a Third Party
Obligor;
(c) the
acquisition by Borrower or any Third Party Obligor of a controlling or majority
interest in any other entity; and
(d) investments
in other entities, including joint ventures.
“Total
Non-Stock Consideration” means all consideration whatsoever (other than stock in
Borrower or a Subsidiary) and shall include, without limitation, cash, other
property, assumed indebtedness, amounts payable, whether evidenced by notes or
otherwise and “earn-out” payments.”
11. Section
5.10 is hereby deleted in its entirety, and the following substituted
therefor:
“SECTION
5.10. CASH
LIMIT. Cause or permit SunPower Philippines Manufacturing, Ltd.’s
cash, cash equivalents and marketable securities at any time to exceed an
aggregate of Twenty-five Million Dollars ($25,000,000.00).”
12. Section
6.1(g) is hereby deleted in its entirety, and following substituted
therefore:
“(g) Borrower
is called upon to satisfy any guaranty obligation or simultaneous guaranty
obligations permitted under Section 5.4(i) with an aggregate liability in excess
of $10,000,000.00, where Borrower's performance of such obligations, as
substantiated by the beneficiary thereof, is not contingent on any additional
condition, including the passage of time.”
13. Except as
specifically provided herein, all terms and conditions of the Credit Agreement
remain in full force and effect, without waiver or modification. All
terms defined in the Credit Agreement shall have the same meaning when used in
this Amendment. This Amendment and the Credit Agreement shall be read
together, as one document.
14. Borrower
hereby remakes all representations and warranties contained in the Credit
Agreement and reaffirms all covenants set forth therein. Borrower
further certifies that as of the date of this Amendment there exists no Event of
Default as defined in the Credit Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed as of the day and year first written
above.
| SUNPOWER CORPORATION |
XXXXX
FARGO BANK,
NATIONAL ASSOCIATION
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/s/
Xxxxxxxx X. Xxxxxxxxx
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/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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8
Schedule
1.3
Price
Schedule — Trade Services
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As
of April 2008
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Services
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Price
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STANDBY
LC
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Issuance
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20
bps p.a.
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Amendment—Increase
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20
bps p.a.
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Amendment—No
Increase
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$65.00
min.
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Examination/Payment
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20
bps, $250.00 min.
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Transfer
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20
bps, $250.00 min.
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Assignment
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$500.00
($750.00 with LC copy)
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Consultation
to Structure LC
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$200.00/hr.
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Special
Handling
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$250.00
min.
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Cancellation
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$100.00
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Schedule
4.9(a)
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SPWR-CITI
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000000XX0
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BRAZOS
HGR ED-ARS-A5
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SPWR-CITI
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000000XX0
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EFSI
2005-1 A4
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XXXX-XXXX
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00000XXX0
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XXX
STUDENT LOAN TRUST
|
|
SPWR-MONEYMARKETONE
|
00000XXX0
|
COLLEGIATE
FUNDING SERVICES ED
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SPWR-MONEYMARKETONE
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000000XX0
|
XXX
2004-1 A3
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|
XXXX-XXXXXXXXXXXXXX
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00000XXX0
|
XXX
STUDENT LOAN TRUST
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|
SPWR-MONEYMARKETONE
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00000XXX0
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COELT
2003-B A6
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