WAIVER AGREEMENT
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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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THIS WAIVER AGREEMENT (this
"Agreement") is entered into as of January 18, 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 from time to
time ("Credit Agreement").
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
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1.
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So
long as Borrower deposits funds in a deposit account maintained by Borrow
with Bank (account number *** – the “Cash Collateral Account”) on or
before
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January
18, 2008, in an amount no less than the amount of all outstanding indebtedness
of Borrower to Bank in connection with the Line of Credit and the Letter of
Credit Line under the Credit Agreement, including the aggregate amount available
to be drawn under Subfeature Letters of Credit and Letters of Credit (with all
such indebtedness, whether contingent or liquidated, referred to as the “Secured
Obligations”), Bank hereby waives, effective as of the occurrence of each such
event, Borrower’s failure to comply with the following covenants set forth in
the Credit Agreement:
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(a)
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Section
4.3(d). Borrower’s failure to deliver in a timely manner
a certificate of the chief executive officer or chief financial officer of
Borrower that financial statement, delivered under Section 4.3 of the
Credit Agreement were accurate and that there existed no Event of Default
nor any condition, act or event which with the giving of notice or the
passage of time or both would constitute an Event of Default, and with
supporting calculations showing compliance with financial
covenants;
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(b)
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Section
5.4. Borrower’s and Third Party Obligors’ guaranteeing
or becoming liable in any way as surety, endorser, accommodation endorser
or otherwise for, or pledging or hypothecating any assets of Borrower or
such Third Party Obligor as security for, any liabilities or obligations
of Borrower’s Subsidiaries, with the principal amount of such
Subsidiaries’ obligations subject hereto exceeding an aggregate of Fifty
Million Dollars ($50,000,000.00) outstanding at any time;
and
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(c)
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Section
5.5. Borrower’s entering into an Option Agreement, dated
as of January 10, 2008, with NorSun AS pursuant to which Borrower could
acquire a partial ownership interest in a joint venture company to be
established by NorSun AS and its joint venture partners pursuant to the
Joint Venture Agreement, of the same date, by and among such
parties.
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(d)
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With
respect to Section 5.4 of the Credit Agreement, Bank acknowledges that
Borrower and Third Party Obligors may continue to enter into guaranties in
excess of the aggregate amount permitted thereunder and Bank agrees to
waive
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compliance
with Section 5.4 on an ongoing basis with respect to such guaranties so long as
(i) no other Event of Default occurs, and (ii) Borrower continues to maintain
funds in the Cash Collateral Account in the amounts required under Section 2
hereof.
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2.
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The
waiver granted by Bank under Section 1(b) above (a) is limited to the
specific items described above as the same existed as of the date hereof,
and (b) shall continue in full force and effect only so long as (i)
Borrower deposits and maintains funds in the Cash Collateral Account
(which Borrower hereby agrees to do) in an amount no less than the amount
of Secured Obligations, or (ii) until such time as such waiver is
superseded by the parties’ agreement to amend the Credit Agreement to
address the question of corporate guaranties, whichever occurs
first. Borrower hereby agrees that, effective as of and after
the date hereof, the Cash Collateral Account shall secure not only the
Letter of Credit Line (and all Letters of Credit issued thereunder), but
also the Line of Credit (and all advances made and Subfeature Letters of
Credit issued thereunder). Section 1.5 of the Credit Agreement
(“Collateral”) and the Security Agreement (Deposit Account) executed in
connection therewith are hereby deemed amended accordingly. In
the event that Bank determines that due to currency fluctuations the
amount on deposit in the Cash Collateral Account falls below 100% of the
amount of the Secured Obligations, Borrower shall, within 5 days after
Bank’s written demand therefor, deposit funds into the Cash Collateral
Account in the amount of such
shortfall.
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3.
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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
Agreement.
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4.
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Borrower
hereby remakes all representations and warranties contained in the Credit
Agreement and reaffirms all covenants set forth therein, except as Bank
expressly waives compliance in this Agreement. Borrower further
certifies that as of the date of this Agreement, 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, except as such circumstances as to
which Bank expressly waives compliance in this
Agreement.
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***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the day and year first written
above.
XXXXX FARGO BANK,
SUNPOWER
CORPORATION NATIONAL
ASSOCIATION
By: /s/ XXXXXXXX X.
XXXXXXXXX By:
/s/ XXXXXXX X.
XXXXXXXXX
Xxxxxxxx
X.
Xxxxxxxxx Xxxxxxx
X. Xxxxxxxxx
Chief
Financial
Officer
Vice President
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