Exhibit
10.9


 


FIRST AMENDMENT TO
CREDIT AGREEMENT


 


THIS AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) is entered into as of August 20, 2007, 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
Credit Agreement between Borrower and Bank dated as of July 13, 2007, 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.             Section 1.1 is hereby deleted in its entirety, and
the following substituted therefor:


 


“SECTION
1.1.      LINE OF CREDIT.


 


(a)           Line of Credit. Subject to the
terms and conditions of this Agreement, Bank hereby agrees to make advances to
Borrower from time to time up to and including July 31, 2008, not to exceed at
any time the aggregate principal amount of Fifty Million Dollars
($50,000,000.00) (“Line of Credit”), the proceeds of which shall be used for
working capital and other corporate requirements. Borrower’s obligation to
repay advances under the Line of Credit shall be evidenced by a promissory note
dated as of July 13, 2007 (“Line of Credit Note”), all terms of which are
incorporated herein by this reference.


 


(b)           Letter of Credit Subfeature. As
a subfeature under the Line of Credit, Bank agrees from time to time during the
term thereof to issue or cause an affiliate to issue standby letters of credit
for the account of Borrower (each, a “Subfeature Letter of Credit” and
collectively, “ Subfeature Letters of Credit”); provided however, that the
aggregate undrawn amount of all outstanding Subfeature Letters of Credit shall
not at any time exceed Forty Million Dollars ($40,000,000.00). The form and
substance of each Subfeature Letter of Credit shall be subject to approval by
Bank, in its sole discretion. Each Subfeature Letter of Credit shall be issued
for an initial term not to exceed three hundred sixty-five (365) days, as
designated by Borrower; provided however, that if Borrower requests that Bank
issue a Subfeature Letter of Credit hereunder with a final expiration
subsequent to the maturity date of the Line of Credit, such Subfeature Letter
of Credit shall provide


 


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for automatic renewals of
the expiration date thereof (up to the final expiration date thereof, to be
agreed upon by Bank and Borrower) subject to Bank’s right to prevent any such
renewal from occurring by sending notice to that effect to the beneficiary not
less than 60 days prior to the initial (or any extended) expiration date (the “Auto-Renewal
Provision”). The undrawn amount of all Subfeature Letters of Credit shall be
reserved under the Line of Credit and shall not be available for borrowings
thereunder. Each Subfeature Letter of Credit shall be subject to the additional
terms and conditions of the Standby Letter of Credit Agreement previously
executed by Borrower and of applications and any related documents required by
Bank in connection with the issuance thereof. Each drawing paid under a Subfeature
Letter of Credit shall be deemed an advance under the Line of Credit and shall
be repaid by Borrower in accordance with the terms and conditions of this
Agreement applicable to such advances; provided however, that if advances under
the Line of Credit are not available, for any reason, at the time any drawing
is paid, then Borrower shall immediately pay to Bank the full amount drawn,
together with interest thereon from the date such drawing is paid to the date
such amount is fully repaid by Borrower, at the rate of interest applicable to
advances under the Line of Credit. In such event Borrower agrees that Bank, in
its sole discretion, may debit any account maintained by Borrower with Bank for
the amount of any such drawing. In the event that any Subfeature Letters of
Credit remain outstanding on the maturity date of the Line of Credit (and the
Line of Credit has not been renewed or extended), Borrower shall on demand by
Bank deliver to Bank cash or cash equivalents acceptable to Bank, to be
maintained in an account at Bank, in the aggregate amount then available to be
drawn under such outstanding Subfeature Letter of Credit (plus the amount drawn
and not yet reimbursed under Subfeature Letters of Credit) in which Bank is
granted a possessory security interest of first priority.


 


(c)           Borrowing and Repayment. Borrower
may from time to time during the term of the Line of Credit borrow, partially
or wholly repay its outstanding borrowings, and reborrow, subject to all of the
limitations, terms and conditions contained herein or in the Line of Credit
Note; provided however, that the total outstanding borrowings under the Line of
Credit shall not at any time exceed the maximum principal amount available thereunder,
as set forth above.”


 


2.             Section 1.2 is hereby deleted in its entirety, and
the following substituted therefor:


 


“SECTION
1.2.      LETTER OF CREDIT LINE.


 


(a)           Letter of Credit Line. Subject
to the terms and conditions of this Agreement, Bank hereby agrees to establish
a letter of credit line (“Letter of Credit Line”) under which Bank shall


 


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issue or cause an
affiliate to issue commercial and standby letters of credit for the account of
Borrower to finance working capital and other corporate requirements (each, a “Letter
of Credit” and collectively, “Letters of Credit”) from time to time up to and
including July 31, 2012; provided however, that the aggregate of all undrawn
amounts, and all amounts drawn and unreimbursed, under any Letters of Credit
issued under the Letter of Credit Line shall not at any time exceed the
principal amount of Fifty Million Dollars ($50,000,000.00). The form and
substance of each Letter of Credit shall be subject to approval by Bank, in its
sole discretion. Each Letter of Credit shall be issued for an initial term not
to exceed 365 days, as designated by Borrower; provided however, that no Letter
of Credit shall have a final expiration date subsequent to the maturity date of
the Letter of Credit Line, and if any Letter of Credit is issued for a term in
excess of one year, it shall contain the Auto-Renewal Provision. Each Letter of
Credit shall be subject to the additional terms of the Commercial and Standby
Letter of Credit Agreements, as applicable, to be dated as of the date of their
respective execution, applications thereunder, and any related documents
required by Bank in connection with the issuance thereof (each, a “Letter of
Credit Agreement”).


 


(b)           Repayment of Drafts. Each
drawing paid under any Letter of Credit shall be repaid by Borrower in
accordance with the provisions of the applicable “Letter of Credit Agreement.”


 


3.                                       Section
1.3(c) is hereby amended to read as follows:


 


“(c)         Letter of Credit Fees. Borrower
shall pay to Bank (i) fees upon the issuance of each Letter of Credit
equal to fifteen-hundredths percent (0.15%) 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 fees and charges in effect as of the
date hereof are set forth in Schedule 1.3 hereto.”


 


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


 


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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.


 


	
   

  	
  WELLS FARGO BANK,

  
	
  SUNPOWER CORPORATION

  	
    NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
  By:

  	
  /s/ EMMANUEL T.
  HERNANDEZ

  	
   

  	
  By:

  	
  /s/ MATTHEW A.
  SERVATIUS

  	
   

  
	
   

  	
  Emmanuel T. Hernandez

  	
   

  	
  Matthew A. Servatius

  
	
   

  	
  Chief Financial Officer

  	
   

  	
  Vice President

  
						



 


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