Unassociated Document





Exhibit 10.45


 




	  	  	  
	  	
SHARE KUN-PLEDGE AGREEMENT

	  
	  	  	  
	  	
dated as of October 29, 2010

	  
	  	  	  
	  	
among

	  
	  	  	  
	  	
SUNPOWER CORPORATOIN

	  
	  	
as Pledgor

	  
	  	  	  
	  	
THE FINANCIAL INSTITUTIONS

	  
	  	
named herein as Pledgees

	  
	  	  	  
	  	
UNION BANK, N.A.

	  
	  	
as Administrative Agent

	  
	  	  	  
	  	
relating to

	  
	  	  	  
	  	
CREDIT AGREEMENT DATED AS OF OCTOBER 29, 2010

	  
	  	  	  
	  	  	  
	  		  
	  	  	  









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CONTENTS








	
Section

	  	
Page


	  	  	  
	
Section 1.

	
Interpretation

	
1


	  	  	  
	
Section 2.

	
Establishment of Kun-Pledge

	
2


	  	  	  
	
Section 3.

	
Pledgor’s Representations and Warranties

	
3


	  	  	  
	
Section 4.

	
Pledgor’s Obligations

	
3


	  	  	  
	
Section 5.

	
Dividends and Voting Rights

	
5


	  	  	  
	
Section 6.

	
Enforcement by Administrative Agent and Pledges

	
5


	  	  	  
	
Section 7.

	
Attorney-in-fact

	
7


	  	  	  
	
Section 8.

	
Assignment

	
7


	  	  	  
	
Section 9.

	
Further Assurance

	
7


	  	  	  
	
Section 10.  

	
Termination and Release of Securities

	
8


	  	  	  
	
Section 11.  

	
Miscellaneous

	
8












SCHEDULES








	
Schedule I 

	
List of Pledgees








	
Schedule II 

	
Details of Shares












EXHIBITS








	
Exhibit A

	
Form of Power of Attorney








	
Exhibit B

	
Form of Supplemental Agreement








	
Exhibit C

	
Form of Notice of Assignment







 




Share Kun-Pledge Agreement





  











  






 




SHARE KUN-PLEDGE AGREEMENT







THIS SHARE KUN-PLEDGE AGREEMENT (this “Pledge Agreement”) is entered into as of October 29, 2010, by and among:








	
(1)

	
SUNPOWER CORPORATION, a Delaware corporation (the “Pledgor”);













	
(2)

	
THE FINANCIAL INSTITUTIONS listed in Schedule I hereto (individually a “Pledgee” and collectively, the “Pledgees”, which term shall include their respective successors, transferees and assigns); and













	
(3)

	
UNION BANK, N.A., as administrative agent for the Lenders (as defined below) (in such capacity, the “Administrative Agent”, which term shall include its successors, transferees and assigns).












RECITALS







WHEREAS:








	
(A)

	
Pursuant to that certain Credit Agreement, dated as of the date hereof, by and among the Pledgor, the guarantors from time to time party thereto, the Administrative Agent, and the Pledgees, as lenders (including all annexes, exhibits and schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Credit Agreement”), the Pledgees have agreed to make the Loan to or for the benefit of the Pledgor on and subject to the terms and conditions set forth therein.













	
(B)

	
The Pledgor is the legal and beneficial owner of shares of Woongjin Energy Co., Ltd., a company organized under the laws of the Republic of Korea (“Korea”), having its principal office at 1316 Gwanpyeong-dong, Yoosung-ku, Daejeon, Korea (the “Company”), the details of which are specified in Schedule II hereto (together with any Additional Shares (as defined below), the “Pledged Shares”).













	
(C)

	
It is a condition precedent to the borrowings under the Credit Agreement that the Pledgor enter into this Pledge Agreement and grant a kun-pledge (Kun-Jil-Kwon) to the Pledgees and the Administrative Agent of all Pledged Shares owned by the Pledgor pursuant to the terms and conditions herein.













	
(D)

	
This Pledge Agreement is the Korean Share Pledge referred to in the Credit Agreement.












NOW, THEREFORE, it is agreed as follows:







Section 1.            Interpretation








	
1.1

	
Words and expressions defined in the Credit Agreement shall, unless otherwise defined herein or the context otherwise requires, have the same meaning when used in this Pledge Agreement.  References to any agreement or document shall be construed as references to















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such agreement or document as varied, amended, novated or supplemented from time to time. In addition, as used in this Pledge Agreement:








	
1.2

	
“Additional Shares” means any and all Equity Interests in the Company in which the Pledgor acquires any beneficial interest at any time after the date of this Pledge Agreement (including, without limitation, any newly issued shares subscribed for by the Pledgor in the Company).













	
1.3

	
“KSD” means the Korean Securities Depository.













	
1.4

	
“Lock-up Period” means the period from May 11, 2010 to December 29, 2010.













	
1.5

	
“Secured Obligations” shall mean the Obligations, as defined in the Credit Agreement, including, without limitation, all of the Pledgor’s obligations hereunder and under the other Loan Documents.













	
1.6

	
“Securities Company” means the securities company in Korea to which the Pledged shares will be credited upon the expiry of the Lock-up Period.













	
1.7

	
“Standing Agent” means Daishin Securities Co., Ltd., as standing agent of the Pledgor.













	
1.8

	
“Transfer Agent” means the KSD as transfer agent of the Company.












Section 2.            Establishment of Kun-Pledge








	
2.1

	
The Pledgor hereby pledges to the Pledgees by way of first priority kun-pledge (the “Kun-Pledge”, kun-jilkwon in Korean), all of its right, title and interest in the Pledged Shares, and the Pledgees hereby accept such Kun-Pledge of the Pledged Shares, as collateral security for the due and punctual payment, performance and discharge in full of the Secured Obligations.













	
2.2

	
The Pledgor hereby agrees to provide a Kun-Pledge in favor of the Pledgees over all of its rights, title and interests in the Additional Shares, substantially simultaneously with the acquisition of such Additional Shares, and the Pledgees accept such Kun-Pledge over such Additional Shares pursuant to the terms and conditions contained herein, as collateral security for the due and punctual payment, performance and discharge in full of the Secured Obligations.  For the avoidance of doubt, the Pledgor and the Pledgees hereby agree that, following the acquisition of or subscription for any Additional Shares by the Pledgor, the Pledgor and the Pledgees need not enter into a separate agreement in respect of such Additional Shares or express any intention to provide the Kun-Pledge contemplated in this Section 2.2 (other than the Supplemental Agreement pursuant to Section 4.1(d)).













	
2.3

	
As security for the due and punctual payment, performance and discharge in full of the Secured Obligations, the Pledgor hereby assigns to the Pledgees all of its rights, title, interest, benefits and claims with respect to the Pledged Shares, including the right to















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demand the return, delivery or transfer of the share certificates representing the Pledged Shares from KSD (the “Security Assignment”).







Section 3.            Pledgor’s Representations and Warranties







The Pledgor, on the date hereof and throughout the term of this Pledge Agreement, represents and warrants to the Administrative Agent and the Pledgees that as of the date hereof:








	
  

	
(a)

	
it owns the shares identified in Schedule II hereto, and such shares were duly authorized and issued and are fully paid-in and non-assessable;













	
  

	
(b)

	
it has full rights, titles and interests in the Pledged Shares free and clear of all Liens (save for the Kun-Pledge created hereunder);













	
  

	
(c)

	
it has not pledged, assigned or otherwise transferred to any third party any interest in the Pledged Shares (other than the Kun-Pledge pursuant to this Pledge Agreement), including the right to demand the return, delivery or transfer of the share certificates representing the Pledged Shares from KSD;













	
  

	
(d)

	
it is duly organized, validly existing under the laws of the jurisdiction of its organization and has all necessary corporate power, authority and legal right to execute, deliver, and perform its obligations under, this Pledge Agreement;













	
  

	
(e)

	
it has taken all steps necessary to authorize its execution, delivery and performance of this Pledge Agreement;













	
  

	
(f)

	
it has obtained all authorizations from Governmental Authorities in any jurisdiction and any third parties necessary in order to execute, deliver and perform this Pledge Agreement;













	
  

	
(g)

	
its execution, delivery and performance of this Pledge Agreement are not in conflict with any applicable Law, its Organization Documents, or any indenture, deed, agreement or undertaking entered into by it or by which it is bound;













	
  

	
(h)

	
this Pledge Agreement constitutes the legal, valid and binding obligations of the Pledgor enforceable in accordance with its terms; and













	
  

	
(j)

	
this Pledge Agreement is in proper legal form under the law of Korea for the enforcement thereof against the Pledgor under such law, and all formalities required in Korea to be taken by the Pledgor for the validity and enforceability of the Pledge Agreement have been or will be accomplished.












Section 4.            Pledgor’s Obligations







The Pledgor hereby agrees and undertakes to the Administrative Agent and the Pledgees that:










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4.1

	
At any time before the Obligations of the Company under the Loan Documents have been unconditionally and irrevocably paid and discharged in full:













	
  

	
(a)

	
it shall not initiate or concur in: (i) the appointment of any receiver, manager, liquidator, trustee or similar officer for the Company or any of its assets, properties or revenues; or (ii) any proceeding for the winding up or voluntary or involuntary reorganization, composition or bankruptcy of the Company;













	
  

	
(b)

	
it shall do all such acts as may be necessary to preserve the Kun-Pledge of the Pledged Shares, including causing the Company and the Transfer Agent to indicate in its shareholder’s registry that all of the Pledged Shares have been pledged to the Administrative Agent and the Pledgees and to ensure that such indication is not removed, except with the prior written consent of the Administrative Agent on behalf of the Pledgees;













	
  

	
(c)

	
it shall not assign, transfer, sell, further pledge or otherwise encumber any of the Pledged Shares; and













	
  

	
(d)

	
it shall from time to time promptly, but in any event no later than seven Business Days, upon the acquisition of or the subscription for (as applicable) any Additional Shares:













	
  

	
A.

	
execute and deliver a supplemental agreement (the “Supplemental Agreement”, which shall form part of this Pledge Agreement), together with the Administrative Agent on behalf of the Pledgees, substantially in the form of Exhibit B hereto (or such other form reasonably satisfactory to the Administrative Agent) to the Administrative Agent; and













	
  

	
B.

	
cause the Company (i) to record the name of each of the Pledgees in all share certificates representing such Additional Shares as pledgees of such Additional Shares and deliver the same to the Administrative Agent and (ii) to record the name and address of each of the Pledgees in the shareholders registry of the Company as the pledgees of such Additional Shares and deliver the  copy of such shareholders registry to the Administrative Agent or if the Additional Shares are deposited in KSD, ensure that such Additional Shares are held through the Securities Account and undertake the procedures set forth in Section 4.4 below.













	
4.2

	
Upon the execution of this Pledge Agreement, the Pledgor shall deliver to the Standing Agent a notice of the Security Assignment in the form attached as Exhibit C hereto, with a fixed date stamp affixed thereto, and (i) obtain an acknowledgement of such notice by the Standing Agent with a fixed date stamp affixed thereto and (ii) deliver (or ensure delivery) to the Administrative Agent such notice and acknowledgement.













	
4.3

	
On or prior to the execution of this Pledge Agreement, it shall (i) cause the Standing















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Agent to withdraw the share certificates representing the Pledged Shares from KSD, (ii) cause the Transfer Agent to endorse each share certificate with the name of each of the Pledgees (or to the Administrative Agent on behalf of the Pledgees, as the case may be), deliver the same back to KSD and deliver a comfort letter issued by the Pledgor’s legal counsel confirming such due endorsement to the Administrative Agent, and (iii) cause the Transfer Agent to record the name and address of each of the Pledgees in the shareholders registry of the Company as the pledgees of the Pledged Shares and deliver a  copy of such shareholders registry to the Administrative Agent.








	
4.4

	
Upon the expiry of the Lock-up Period, the Pledgor shall (i) cause the Standing Agent to ensure that the Pledged Shares are credited to and held by the Pledgor in the securities account of the Pledgor (the “Securities Account”) held with a Securities Company satisfactory to the Administrative Agent (and for that purpose, if necessary, to cause the recordation of the Kun-Pledge on share certificates and the shareholders registry of the Company to be deleted), (ii) cause such Securities Company to register the name and address of each Pledgee in the registry of client account of the Securities Company for the Securities Account (the “Securities Account Registry”) and to deliver to the Administrative Agent a copy of the Securities Account Registry, (iii) do all such acts as may be necessary in order for the Administrative Agent to be able to enforce the pledge over the Pledged Shares in the Securities Account without any further consent, authorization or action by the Pledgor, including, but not limited to, executing and delivering to the Administrative Agent a Consent to Disposal of Pledged Shares in the form acceptable to the Securities Company, and (iv) do all such acts as may be necessary in order for the Administrative Agent to be able to update the Securities Account Registry, including the names and addresses of Pledgees, without any further consent, authorization or action by the Pledgor.












Section 5.            Dividends and Voting Rights







Prior to the Administrative Agent’s issuance of a notice following the occurrence and during the continuance of an Event of Default as defined in the Credit Agreement, the Pledgor shall be entitled to exercise in its sole discretion, with respect to the Pledged Shares, all rights and powers, conferred by statute or otherwise, upon an absolute owner of such Pledged Shares and, subject to the terms of the Credit Agreement, to receive all dividends, interest, principal or other payments of money declared or made with respect to the Pledged Shares, provided, that after the receipt by the Pledgor of such notice from the Administrative Agent, and during the continuance of such Event of Default, the Administrative Agent may, subject to the terms of the Loan Documents and in accordance with applicable Law, exercise or cause to be exercised in respect of any Pledged Shares any voting rights and rights to receive dividends, interest, principal or other payments of money, as the case may be, forming a part of the Pledged Shares and rights conferred on or exercisable by the bearer or holder thereof in its capacity as such.








 


Section 6.            Enforcement by Administrative Agent and Pledges








	
6.1

	
If an Event of Default under the Credit Agreement has occurred and is continuing, and the Pledgor has received notice of the same from the Administrative Agent, the















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Administrative Agent on its own behalf and on behalf of the Pledgees shall become forthwith entitled to put into force and to exercise all or any of the rights and power possessed by the Pledgees as pledgees of the Pledged Shares, including without limitation, the power to:








	
  

	
(a)

	
during the Lock-up Period, give such notices or instructions, in the name of the Administrative Agent or in the name of the Pledgor, to the Standing Agent to effect the delivery of the Pledged Shares to the Administrative Agent (on behalf of the Pledgees) or its designees, to the extent permitted by applicable Law;













	
  

	
(b)

	
after the expiry of the Lock-up Period, transfer any or all of the Pledged Shares from the Securities Account to a Pledgee’s or the Administrative Agent’s securities account by executing a Consent to Disposal of Pledged Shares and providing the same to the Securities Company;













	
  

	
(c)

	
exercise, to the extent permitted by applicable Law, all voting, consensual and other powers of ownership pertaining to the Pledged Shares as if the Pledgees were the sole and absolute owners thereof (and the Pledgor agrees that at such time and upon the Administrative Agent’s request it will take all such actions as may be necessary to give effect to such right);













	
  

	
(d)

	
demand, sue for, collect or receive, in the name of the Administrative Agent or in the name of the Pledgor, any money or property at any time payable or receivable on account of or in exchange for any of the Pledged Shares, but shall be under no obligation to do so; and













	
  

	
(e)

	
to the extent permitted by and in accordance with applicable Law, assign, sell or otherwise dispose of the Pledged Shares to such person, at a public or a private sale, and upon such terms as the Administrative Agent may reasonably determine, and the Administrative Agent or any Pledgee or anyone else may be the purchaser, pledgee or recipient of any or all of the Pledged Shares and thereafter hold the same absolutely, free from any claims or rights whatsoever, including any rights of redemption, of the Pledgor.













	
6.2

	
If the proceeds (as defined below) of such sale, collection or other realization of all or any part of the Pledged Shares pursuant to Section 6.1 hereof are insufficient to cover the costs and expenses of such realization and the payment in full of the Secured Obligations, the Pledgor shall remain liable for such deficiency.













	
6.3

	
The Administrative Agent and the Pledgees shall incur no liability as a result of the sale of the Pledged Shares or any part thereof, at any public or private sale pursuant to Section 6.1 hereof and otherwise. The Pledgor hereby waives any claims against the Administrative Agent or any Pledgee arising by reason of the fact that the price at which the Pledged Shares have been sold at such private sale may be less than the price at which it could have been sold otherwise















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6.4

	
The proceeds (as defined below) of any sale or other realization of all or any part of the Pledged Shares shall be applied by the Administrative Agent in accordance with the Credit Agreement. As used in this Section 6, the “proceeds” shall mean cash, securities and other property realized in respect of, and distributions in kind of, the Pledged Shares, including any thereof received under any reorganization, liquidation or adjustment of debt of the Pledgor.












Section 7.            Attorney-in-fact







The Pledgor hereby irrevocably appoints the Administrative Agent its true and lawful attorney-in-fact with full power to require, demand and receive any and all moneys and claims for money due and to become due under or with respect to its Shares and to take any action or execute any instrument which the Administrative Agent may deem necessary to accomplish the purpose hereof; provided, that the Administrative Agent shall not exercise the authority conferred above unless and until the Administrative Agent on behalf of the Pledgees is permitted to exercise any of the rights pursuant to Section 6.1. The Pledgor shall execute the Power of Attorney attached hereto as Exhibit A on the date of this Pledge Agreement and the date on which the Pledgor acquires any and all Additional Shares (if any), and hereby authorizes the Administrative Agent to fill in the date on the executed Power of Attorney at its discretion. The Administrative Agent agrees not to exercise its rights under such power of attorney except in connection with the exercise of remedies under Section 6.







Section 8.            Assignment







This Pledge Agreement and the Kun-Pledge created hereunder shall be binding upon and inure to the benefit of the Pledgor, the Administrative Agent and the Pledgees and their respective successors and permitted assigns. The Administrative Agent and any Pledgee may, to the extent permitted by and in accordance with the Credit Agreement and applicable Law, at any time assign all or any part (to the extent permitted by the Credit Agreement) of its rights or obligations hereunder to any party (each an “Assignee”). The parties hereto agree that to the extent of any assignment, the Assignee shall be deemed to have the same rights and benefits under this Pledge Agreement as it would have had if it were a signatory Pledgee hereunder, and the Pledgor shall ensure that procedures set forth in Section 4.3 or Section 4.4, as applicable, are promptly completed with respect to the Assignee. The Pledgor may not assign any of its rights or obligations hereunder without the prior written consent of the Administrative Agent.







Section 9.            Further Assurance







The Pledgor agrees that at any time and from time to time upon the written request of the Administrative Agent, it shall promptly and duly execute and deliver any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably request in order to perfect and/or protect any Lien granted or purported to be granted hereby or to enable the Administrative Agent and the Pledgees to exercise and enforce their rights and remedies hereunder with respect to the Pledged Shares pledged by this Pledge Agreement.










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Section 10.            Termination and Release of Securities







The term of this Pledge Agreement shall begin on the signing date of this Pledge Agreement and end on the date on which all Secured Obligations shall have been unconditionally and irrevocably paid and discharged in full and none of the Pledgees shall be under any further actual or contingent obligation to make any advance or provide other financial accommodation to any obligor or any other person under any of the Loan Documents. Upon termination of this Pledge Agreement, the Administrative Agent and the Pledgees shall  at the request and cost of the Pledgor promptly release and discharge this Pledge Agreement and the Kun-Pledge created hereunder







Section 11.            Miscellaneous








	
11.1

	
Notices.  All notices, requests and other communications hereunder shall be given in the manner and to the addresses specified in the Credit Agreement.













	
11.2

	
Severability.  If any of the provisions of this Pledge Agreement shall contravene any Law or be held invalid, this Pledge Agreement shall be construed as if not containing those provisions, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.













	
11.3

	
Amendments, Changes and Modifications.  This Pledge Agreement shall not be amended, changed, modified, altered or terminated, unless the prior written approval of the Pledgor and the Administrative Agent is obtained.  This Pledge Agreement shall not be amended by an oral agreement.













	
11.4

	
Counterparts.  This Pledge Agreement may be executed in multiple counterparts, each of which, when executed, shall constitute an original but all of which together shall constitute one and the same instrument.













	
11.5

	
Heading.  Headings and titles herein are for convenience only and shall not affect the construction or interpretation of this Pledge Agreement.













	
11.6

	
Entire Agreement.  This Pledge Agreement, together with other Loan Documents, is intended by the parties as the written final expression of each party's obligations and rights in connection with the Kun-Pledge of the Pledged Shares and the Security Assignment and supersedes all prior and contemporaneous understandings or agreements concerning the subject matter hereof. The Kun-Pledge is made in conjunction with the security interest granted to the Agent under the Pledge Agreement dated October 29, 2010 by and between the Pledgor as grantor and the Administrative Agent as administrative agent for the Lenders governed by the laws of the State of California (the “U.S. Pledge Agreement”).  The rights, powers and remedies of the Administrative Agent and the Pledgees with respect to the Kun-Pledge are in addition to those set forth in the Credit Agreement, the U.S. Pledge Agreement and the other Loan Documents, and those which are now or hereafter available to the Administrative Agent or any Pledgee as a matter of law or equity.  Each right, power and remedy of the Administrative















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Agent and/or the Pledgees provided for herein or in the Credit Agreement, the U.S. Pledge Agreement or any of the other Loan Documents, or now or hereafter existing at law or in equity, shall be cumulative and concurrent and shall be in addition to every right, power or remedy provided for herein, and the exercise by the Administrative Agent or any Pledgee of any one or more of the rights, powers or remedies provided for in this Pledge Agreement, the Credit Agreement, the U.S. Pledge Agreement or any of the other Loan Documents, or now or hereafter existing at law or in equity, shall not preclude the simultaneous or later exercise by any person, including the Administrative Agent, of any or all other rights, powers or remedies.








	
11.7

	
Conflict.  In the case of a conflict between the provisions of this Pledge Agreement and the provisions of Credit Agreement, the provisions of the Credit Agreement shall prevail. In the case of a conflict between the provisions of this Pledge Agreement and the provisions of the pledge agreement dated October 29, 2010 between the Pledgor and the Administrative Agent, which pledge agreement is governed by the laws of the State of California, the provisions of this Pledge Agreement shall prevail.













	
11.8

	
No Waiver.  Neither the Administrative Agent nor any Pledgee shall, by any act, delay, indulgence, omission or otherwise, except by an express written instrument clearly indicating an intention to waive, be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default. No failure to exercise, nor any delay in exercising on the part of the Administrative Agent and the Pledgees, any rights, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power, privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.













	
11.9

	
Remedies Cumulative.  The rights and remedies provided herein are cumulative and may be exercised individually or concurrently, and are not exclusive of any other rights or remedies provided by Law.













	
11.10

	
Action by Pledgees.  To the extent permitted by Law, all notices which may be given to the Pledgees hereunder, and all rights and remedies which may be exercised by the Pledgees hereunder, shall be given or exercised by and through the Administrative Agent and not by any one or more Pledgees directly.













	
11.11

	
Governing Law and Jurisdiction.  This Pledge Agreement and the security created pursuant hereto shall be governed by the laws of Korea in all respects, including matters of construction, validity and performance. The parties hereto agree that any legal action or proceeding arising out of or relating to this Pledge Agreement may be brought in the Seoul Central District Court in Seoul, Korea and the Pledgor hereby irrevocably submits to the non-exclusive jurisdiction of such court.












(Signature pages to follow)










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IN WITNESS WHEREOF, the parties hereto have caused this Share Kun-Pledge Agreement to be duly executed as of the day and year first above written.







PLEDGOR







SUNPOWER CORPORATION


 




	
By

	
/s/ Dennis V. Arriola

	  
	
Name:

	
Dennis V. Arriola

	  
	
Title:

	
Executive Vice President and Chief Financial Officer

	  











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ADMINISTRATIVE AGENT







UNION BANK, N.A., as administrative agent


 




	
By

	
/s/ James B. Goudy

	  
	
Name:

	
James B. Goudy

	  
	
Title:

	
Vice President

	  







 


PLEDGEES







UNION BANK, N.A.,


as pledgee


 




	
By

	
/s/ James B. Goudy

	  
	
Name:

	
James B. Goudy

	  
	
Title:

	
Vice President

	  







 





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HSBC BANK USA, NATIONAL ASSOCIATION,


as pledgee


 




	
By

	
/s/ Jason A. Huck

	  
	
Name:

	
Jason A. Huck

	  
	
Title:

	
Vice President, Relationship Manager

	  







 





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SCHEDULE I







LIST OF PLEDGEES







UNION BANK, N.A.







HSBC BANK USA, NATIONAL ASSOCIATION










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SCHEDULE II









DETAILS OF PLEDGED SHARES







WOONGJIN ENERGY CO., LTD.








	
Shareholder

	
Type of Shares

	
Number of Shares


	
Sunpower Corporation

	
Ordinary

	
19,398,510 shares of common stock; representing 31.29% of all issued and outstanding shares of the Company















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EXHIBIT A







FORM OF POWER OF ATTORNEY







KNOW ALL BY THESE PRESENT that we, Sunpower Corporation (the “Shareholder”), do hereby constitute and appoint Union Bank, N.A. (the “Bank”) as the true and lawful attorney-in-fact with full power and authority on behalf and in the name of the Shareholder to exercise all or any of the rights and power conferred on the Shareholder in respect of the shares of Woongjin Energy Co., Ltd. (listed in the Appendix attached hereto) (the “Pledged Shares”), including without limitation, the right and power to:








	
(a)

	
exercise, to the extent permitted by applicable Law, all voting, consensual and other powers of ownership pertaining to the Pledged Shares as if the Bank were the sole and absolute owners thereof (and the Shareholder agrees that at such time and upon the Bank’s request it will take all such actions as may be necessary to give effect to such right);













	
(b)

	
demand, sue for, collect or receive, in the name of the Bank or in the name of the Shareholder, any money or property at any time payable or receivable on account of or in exchange for any of the Pledged Shares, but shall be under no obligation to do so; and













	
(c)

	
to the extent permitted by and in accordance with applicable Law, assign, sell or otherwise dispose of the Pledged Shares to such person, at a public or a private sale, and upon such terms as the Bank may reasonably determine, and the Bank or any Pledgee or anyone else may be the purchaser, pledgee or recipient of any or all of the Pledged Shares and thereafter hold the same absolutely, free from any claims or rights whatsoever, including any rights of redemption, of the Pledgor.












Words and expressions defined in the Share Kun-Pledge Agreement dated as of October 29, 2010 by and among, inter alios, the Shareholder as pledgor, the financial institutions listed in Schedule I thereto as pledgees and the Bank as Administrative Agent (as amended and supplemented) shall, unless otherwise defined herein or the context otherwise requires, have the same meaning when used in this Power of Attorney.







The undersigned hereby confirms, and undertakes to confirm, all actions to be taken by the attorney-in-fact duly appointed hereunder.







IN WITNESS WHEREOF, the undersigned hereunto affixed his name and signature as of _____________________ ___ 20__.







SUNPOWER CORPORATION










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By:

	  	  
	  	
Name:

	  
	  	
Title:

	  










Appendix







Details of Pledged Shares







WOONGJIN ENERGY CO., LTD.








	
Shareholder

	
Type of Shares

	
Number of Shares


	
Sunpower Corporation

	
Ordinary

	
19,398,510 shares of common stock; representing 31.29% of all issued and outstanding shares of the Company















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EXHIBIT B












FORM OF SUPPLEMENTAL AGREEMENT







1.             We make reference to the Share Kun-Pledge Agreement (as amended and supplemented, the “Pledge Agreement”) dated October 29, 2010 entered into by and among Sunpower Corporation as pledgor (the “Pledgor”), the financial institutions listed in Schedule I thereto as pledgees (individually, a “Pledgee” and collectively, the “Pledgees” which term shall include their respective successors in title, permitted assigns and permitted transferees from time to time) and Union Bank, N.A., acting individually for itself and for the benefit of the Pledgees as Administrative Agent (the “Administrative Agent”, which term shall include its successors in title, permitted assigns and permitted transferees from time to time).  This Pledge agreement shall constitute a “Supplemental Agreement” for the purposes of Section 4.1(d) of the Pledge Agreement.







2.             Words and expressions defined or referred to in the Pledge Agreement shall, unless otherwise defined herein or the context otherwise requires, have the same meaning when used in this Supplemental Agreement.







3.             Pursuant to Section 4.1(d) of the Pledge Agreement, and in order to secure the payment, performance and discharge in full of the Secured Obligations, the Pledgor hereby pledges by way of first priority kun-pledge in favour of the Pledgees all of its rights, title and interests in Additional Shares as listed in the Annex 1 attached hereto.







4.             By execution of this Supplemental Agreement, it shall be deemed that this Supplemental Agreement constitutes a part of the Pledge Agreement and that this Supplemental Agreement, taken together with the Pledge Agreement, shall constitute one and the same agreement.







[Signature page follows]










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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement to be executed as of _________, [**].







PLEDGOR







SUNPOWER CORPORATION








	
By

	  	  
	  	
Name:

	  
	  	
Title:

	  










ADMINISTRATIVE AGENT ON BEHALF OF ITSELF AND ALL THE PLEDGEES







UNION BANK, N.A.








	
By

	  	  
	
Name:

	
James B. Goudy

	  
	
Title:

	
Vice President

	  













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Annex 1. to the Supplemental Agreement







DETAILS OF ADDITIONAL SHARES







WOONGJIN ENERGY CO., LTD.








	
Shareholder

	
Type of Shares

	
Number of Shares


	
Sunpower Corporation

	  	  













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EXHIBIT C







FORM OF NOTICE OF ASSIGNMENT







___, 20[**]








	
To:

	
Daishin Securities Co., Ltd.












With copy to: Woongjin Energy Co., Ltd.







Re: Security Assignment







We, SUNPOWER CORPORATION (the “Assignor”), do hereby give notice that that we have assigned by way of security to UNION BANK N.A. and HSBC BANK, USA, NATIONAL ASSOCIATION (collectively, the “Assignees”, which expressions shall include their respective successors in title, permitted assigns and permitted transferees from time to time) pursuant to the terms and conditions provided in a certain Share Kun-Pledge Agreement entered into by and among the Assignor, the Assignees and UNION BANK N.A. acting as administrative agent on behalf of the Assignees (the “Administrative Agent”) dated as of October 29, 2010, all of our rights, title, interest, benefits and claims with respect to the Pledged Shares (identified below), including the right to demand the return, delivery or transfer of the share certificates representing the Pledged Shares from the Korea Securities Depository. Please acknowledge receipt of this notice and the Assignor’s assignment referred to in above without any objection by signing below and returning such acknowledgement to the Administrative Agent.







Pledged Shares:







WOONGJIN ENERGY CO., LTD.








	
Shareholder

	
Type of Shares

	
Number of Shares


	
Sunpower Corporation

	
Ordinary

	
19,398,510 shares of common stock; representing 31.29% of all issued and outstanding shares of the Company












SUNPOWER CORPORATION








	
By

	  	  
	
Name:

	  
	
Title:

	  










[fixed date stamp]










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Acknowledged by:







DAISHIN SECURITIES CO., LTD.








	
By

	  	  
	
Name:

	  
	
Title:

	  










[fixed date stamp]


 


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