Contract
EXHIBIT 10.5
and
agrees that the failure of the Process Agent to give any notice of any such
service of process to SUN SA shall not impair or affect the validity of such
service or of any judgment based thereon. SUN SA hereby further
irrevocably consents to the service of process in any suit, action or proceeding
in the above specified courts by the mailing thereof by Bank by registered or
certified mail, postage prepaid, to SUN SA at the address specified below SUN SA
's signature. Nothing herein shall in any way be deemed to limit the
ability of Bank to serve any writs, processes or summonses in any other manner,
as may be permitted by applicable law. SUN SA irrevocably waives any objection
which it may now or hereafter have to the laying of the venue of any suit,
action or proceeding arising out of or relating to this Guaranty brought in the
courts of the State of California or of the United States District Court for the
Northern District of California, or the courts in the country of SUN SA 's
incorporation, and also irrevocably waives any claim that any such suit, action
or proceeding brought in any of those courts has been brought in an inconvenient
forum.
JOINDER
TO CONTINUING GUARANTY DATED AS OF JULY 13, 2007
IN FAVOR
OF XXXXX FARGO BANK, NATIONAL ASSOCIATION
This
Joinder is executed by SunPower Systems SA (“SUN SA”), an indirect subsidiary of
SunPower Corporation, as of this 4th day of April, 2008. SUN SA
executes this joinder in connection with and as a condition to various credit
accommodations extended under the terms and conditions of that certain Credit
Agreement dated as of July 13, 2007 between SunPower Corporation (“Borrower”)
and Xxxxx Fargo Bank, National Association (“Bank”) (as such Credit Agreement
may be amended or replaced form time to time).
By
executing in the space provided below, SUN SA agrees that it assumes liability
to Bank under the terms of the Continuing Guaranty dated as of July 13, 2007
(“Guaranty”) executed by certain of Borrower’s Subsidiaries in favor of Bank
relative to the obligations of Borrower to Bank as though it had executed said
Guaranty as a Guarantor thereunder and it shall for all purposes be deemed a
Guarantor under said Guaranty.
SUN SA further agrees that the
following is added to and made part of the Guaranty. Capitalized
terms used without definition herein shall have the meanings assigned to them in
the Guaranty.
1. Additional
Representations. SUN SA represents and warrants to Bank
that:
(a) No
approval, consent or authorization of, order, registration or license by, filing
with, giving notice to, or taking any other action by or in respect of any
governmental or regulatory authority or central bank or other fiscal, monetary
or other authority is required in connection with the execution and delivery of,
or performance of SUN SA's obligations under this Guaranty or for the validity,
enforceability or admissibility in evidence of this Guaranty.
(b) In
the event a final judgment of any court in the United States of America is
obtained after service of process in the manner specified in this Guaranty,
then, subject to the provisions of the Law for the Enforcement of Foreign
Judgments, 1958, and applicable case law, and provided that a petition for the
authorization of such judgment is filed with the appropriate Swiss court(s),
subject to specified time limitations the same would be enforceable
by the courts of Switzerland, provided that: (a) adequate service of process has
been effected and the defendant has had a reasonable opportunity to be heard;
(b) the judgment and its enforcement are not contrary to the law, public policy,
security or sovereignty of Switzerland; (c) the judgment was obtained after due
process before a court of competent jurisdiction according to the rules of
private international law prevailing in Switzerland; (d) the judgment was not
obtained by fraudulent means and does not conflict with any other valid judgment
in the same matter between the same parties; (e) an action between the same
parties in the same matter is not pending in any Swiss court at the time the
lawsuit is instituted in the U.S. court; and (f) the U.S. court is not
prohibited from enforcing the judgments of the courts of
Switzerland.
(c) This
Guaranty is not subject to any registration, stamp, documentary or similar tax,
other than stamp duty, should the Swiss tax authorities determine that stamp
duty is applicable to the Guaranty.
(d) Neither
SUN SA nor any of SUN SA's assets enjoys any right of immunity from suit,
attachment or execution in aid of a judgment in respect of SUN SA's obligations
under this Guaranty.
2. Waiver. To
the extent SUN SA or any assets of SUN SA enjoys any right of immunity from
suit, attachment or execution in aid of a judgment in respect of SUN SA’s
obligations under this Guaranty, and if SUN SA or any assets of SUN SA should
become entitled to any such right of immunity, then SUN SA hereby waives such
right or rights.
3. Payments. Any
payments made to Bank by SUN SA pursuant to this Guaranty shall be free and
clear of any deductions or withholdings for or on account of any taxes, levies,
imposts, duties or other charges of whatever nature imposed by any government,
political subdivision, bank or taxing authority. SUN SA shall pay to
Bank such amounts as may be necessary in order that every payment made by
Guarantor hereunder, after SUN SA makes any required deductions or withholding
for or on account of any taxes, levies, imposts, duties or other charges of
whatever nature imposed by any government, political subdivision, bank or taxing
authority, shall not be less than the payment otherwise required
hereunder.
4. Withholding. Without
limiting Bank's rights under any of the other provisions of this Guaranty, in
the event any taxes, levies, imposts, duties or other charges of whatever nature
are assessed against Bank in connection with payments to Bank by SUN SA
hereunder or otherwise in connection with this Guaranty, then SUN SA shall pay
when due, and indemnify and hold Bank harmless from, such charges, without
reducing the net amount of such payments to be made to Bank below that amount
which Bank would have received had such taxes or charges not been
assessed. SUN SA shall furnish to Bank a receipt evidencing payment
of any such taxes or charges promptly after such payment, and the tax return or
other report filed with respect to any such taxes or charges promptly after such
filing, and, in any event, shall provide each such receipt and each such return
or report within 10 days after receipt of Bank’s request therefor from time to
time.
5. Indemnity. SUN
SA agrees to pay, and to indemnify and hold Bank harmless from, any present or
future claim or liability for any registration, stamp, documentary, court, or
similar taxes, fees or charges, or any penalties or interest with respect
thereto, which may be assessed, levied or collected by Switzerland, any state or
other political subdivision of Switzerland, any other country or other
jurisdiction in which SUN SA now or in the future maintains any property or
assets, or any governmental agency of any of the foregoing, or otherwise in
connection with the execution, notarization, formalization, issuance, delivery,
filing, registration or enforcement of this Guaranty. If Bank
requests, SUN SA shall furnish to Bank a receipt evidencing payment of any such
taxes or other amounts, and the tax returns or other reports filed with respect
to such taxes or other amounts, within 30 days after receipt of such
request.
6. Registration. If
requested by Bank at any time, SUN SA shall cause this Guaranty to be
registered, notarized or otherwise formalized to the extent at any time required
by the applicable laws of Switzerland, the applicable laws of any province or
other political subdivision of Switzerland, or the applicable laws of any other
country or other jurisdiction in which SUN SA now or in the future maintains any
property or assets, and SUN SA shall pay, and indemnify and hold Bank harmless
from, any liability for any stamp taxes or any registration, documentation or
other types of fees, charges, taxes or fines in connection with any such
registration, notarization or formalization. SUN SA shall provide
Bank with evidence of such registration within 45 days after Bank’s request for
such evidence, which evidence shall be in form and substance satisfactory to
Bank.
7. Suit;
Service. Any suit, action or proceeding against SUN SA with respect
to this Guaranty may be brought in (a) the courts of the State of California,
(b) the United States District Court for the Northern District of California, or
(c) the courts of the country of SUN SA's incorporation, as Bank may elect in
its sole discretion, and SUN SA hereby submits to any such suit, action,
proceeding or judgment and waives any other preferential jurisdiction by reason
of domicile. SUN SA hereby agrees that service of all writs,
processes and summonses in any suit, action or proceeding brought in the State
of California may be made upon Borrower, presently located at 0000 X. Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Process Agent"). SUN SA hereby
irrevocably appoints the Process Agent its agent and true and lawful
attorney-in-fact while any of SUN SA 's obligations under this Guaranty remain
unsatisfied, in its name, place and stead only to accept such service of any and
all such writs, processes and summonses,
8. Judgment
Currency. Notwithstanding any judgment rendered in a currency other
than United States Dollars, SUN SA shall not be relieved of any obligations with
respect to any amount owed by it to Bank under this Guaranty except to the
extent of the amount in United States Dollars which Bank is able to acquire with
such amount of such currency on the Banking Day (a day when Bank is open for
business in San Francisco, California, U.S.A.) following receipt of such amount
by Bank. If the amount in United States Dollars so acquired is less
than the amount initially due to Bank, SUN SA shall indemnify Bank by paying the
difference between such amounts in United States Dollars. The payment
of any additional amount so required of SUN SA under this Section shall
constitute an independent obligation of SUN SA, the enforcement of which
obligation may not be impeded by SUN SA.
Date:
April 4, 2008
SUNPOWER
SYSTEMS SA
By: /s/ Xxxxxx X.
Xxxxxxxxx
Title:
Xxxxxx X. Xxxxxxxxx, Director
By: Xxx
Xxxxxxxxx
Title:
CTO
Address:
SunPower
Systems SA
c/o
SunPower Corporation
Attn: Corporate
Secretary
0000
Xxxxx Xxxxx Xxxxxx
Xxx Xxxx,
XX 00000
