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EXHIBIT
10.4
SECOND
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this "Amendment") is entered into as of August 31,
2009, by and between SUNPOWER CORPORATION, a Delaware corporation ("Borrower"),
and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted
to Bank pursuant to the terms and conditions of that certain Amended and
Restated Credit Agreement between Borrower and Bank dated as of March 20, 2009,
as 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. The
following defined term is hereby deleted in its entirety, and the following
substituted therefor:
“L/C Line Commitment
Amount” means the Dollar Equivalent Amount of
$200,000,000.00.”
2. The
third paragraph of Section 1.5 is hereby deleted in its entirety, without
substitution:
3. The
first sentence of Section 4.9.(a) is hereby deleted in its entirety, and
the following substituted therefor:
"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 (i) two (2.00) times the Exposure (defined below) under the Line of
Credit, with a minimum amount of such liquidity equal to 150% of the Exposure to
be held in accounts maintained in the United States, in all instances determined
as of the end of each of Borrower’s fiscal months."
-1-
4. 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.
5. 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as
of the day and year first written above.
| SUNPOWER CORPORATION |
WELLS
FARGO BANK,
NATIONAL ASSOCIATION
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By:
/s/Dennis Arriola
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By:
/s/ Matthew A. Servatius
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Dennis
Arriola
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Matthew
A. Servatius
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Chief
Financial Officer
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Vice
President
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