ex10-39.htm


    
EXHIBIT 10.39

      


      
        
           

          
            
              	
                      CONFIDENTIAL
      TREATMENT REQUESTED

                       

                      
                        --

                        CONFIDENTIAL
      PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
      FILED WITH THE SECURITIES AND EXCHANGE
  COMMISSION

                      

                    


            

          

           

        

      

      DATED                      18
DEC                                2008

       

      


       

      


       

      SUNPOWER
MALAYSIA MANUFACTURING SDN. BHD.

       

      (Company
No. 824246-W)

       

      as
Borrower

       

      


       

      


       

      and

       

      


       

      


       

      GOVERNMENT
OF MALAYSIA

       

      as
Lender

       

      


       

      


       

      


       

      


       

      DEBENTURE

       

      


       

      


       

      


       

      


       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      CONTENTS

       

      Clause Page

       

       

      1.           INTERPRETATION [INSERT
PAGE NUMBER]

       

       

      2.           PAYMENT OF SECURED
INDEBTEDNESS [INSERT
PAGE NUMBER]

       

       

      3.           GRANT OF SECURITY [INSERT
PAGE NUMBER]

       

       

      4.           CRYSTALLISATION OF FLOATING
CHARGE [INSERT
PAGE NUMBER]

       

       

      5.           FURTHER ASSURANCE [INSERT
PAGE NUMBER]

       

       

      6.           REPRESENTATIONS AND WARRANTIES IN
RELATION TO CHARGED PROPERTY [INSERT
PAGE NUMBER]

       

       

      7.           COVENANTS [INSERT
PAGE NUMBER]

       

       

      8.           ENFORCEMENT OF SECURITY [INSERT
PAGE NUMBER]

       

       

      9.           APPOINTMENT OF RECEIVER [INSERT
PAGE NUMBER]

       

       

      10.           DELEGATION BY THE LENDER AND
RECEIVER [INSERT
PAGE NUMBER]

       

       

      11.           LIABILITY OF LENDER, RECEIVER AND
DELEGATE [INSERT
PAGE NUMBER]

       

       

      12.           APPLICATION OF MONIES [INSERT
PAGE NUMBER]

       

       

      13.           PROTECTION OF PURCHASERS [INSERT
PAGE NUMBER]

       

       

      14.           POWER OF ATTORNEY [INSERT
PAGE NUMBER]

       

       

      15.           EFFECTIVENESS OF
SECURITY [INSERT
PAGE NUMBER]

       

       

      16.           RELEASE OF SECURITY [INSERT
PAGE NUMBER]

       

       

      17.           SET-OFF [INSERT
PAGE NUMBER]

       

       

      18.           EXPENSES AND INDEMNITIES [INSERT
PAGE NUMBER]

       

       

      19.           RIGHTS, WAIVERS AND
DETERMINATIONS [INSERT
PAGE NUMBER]

       

       

      20.           ASSIGNMENT [INSERT
PAGE NUMBER]

       

       

      21.           NOTICES [INSERT
PAGE NUMBER]

       

       

      22.           GOVERNING LAW [INSERT
PAGE NUMBER]

       

       

      23.            PRINCIPAL AND SUBSIDIARY
INSTRUMENT [INSERT
PAGE NUMBER]

       

       

      SCHEDULE
1 [INSERT
PAGE NUMBER]

       

       

      DETAILS
OF EQUIPMENT [INSERT
PAGE NUMBER]

       

       

      SCHEDULE
2 [INSERT
PAGE NUMBER]

       

      


       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
        	
                THIS DEBENTURE is made
      on the

              	
                18 DEC
      2008____

              


      

       

      
        	
                 
      

              	
                BETWEEN

              


      

       

      
        	
                (1)

              	
                GOVERNMENT OF MALAYSIA,
      as lender (the “Lender”).

              


      

       

      
        	
                 
      

              	
                AND

              


      

       

      
        	
                (2)

              	
                SUNPOWER MALAYSIA MANUFACTURING
      SDN. BHD., a company incorporated under the laws of Malaysia and
      having its registered address at  Level 41 – Suite B, Menara
      Maxis, Kuala Lumpur City Centre, 50088 Kuala Lumpur as chargor
      (the “Borrower”);

              


      

       

      WHEREAS:

       

      
        	
                (A)

              	
                By
      a facility agreement dated

              	 	
                (the
      “Facility
      Agreement”) made between the Borrower and the Lender, the Lender
      has agreed to make available to the Borrower certain credit facilities of
      up to One Billion Ringgit Malaysia (RM1,000,000,000) (the “Facility”), upon the
      terms and conditions set out
therein.

              


      

       

      
        	
                (B)

              	
                It
      is a condition precedent to the Lender making the Facility available to
      the Borrower that the Borrower executes this
  Debenture.

              


      

       

      
        	
                 
      

              	
                AND WITNESSES as
      follows:

              


      

       

      
        	
                1.  

              	
                INTERPRETATION

              


      

       

      
        	
                1.1  

              	
                Definitions.  Terms
      defined in the Facility Agreement shall, unless otherwise defined in this
      Debenture, have the same meanings when used in this Debenture and in
      addition:

              


      

       

      "Charged Property" means all
the assets, property, rights and undertaking of the Borrower which from time to
time are the subject of the security created or expressed to be created in
favour of the Lender by or pursuant to this Debenture (and references to the
Charged Property shall include references to any part of it).

       

      "Collateral Rights" means all
rights, powers and remedies of the Lender provided by or pursuant to this
Debenture or by law.

       

      "Delegate" means any person
appointed pursuant to Clause 10
(Delegation) and any
person appointed as an attorney of the Lender and/or any Receiver.

       

      “Equipment” means all items of
plant, equipment and machinery now or hereafter owned by the Borrower including,
but not limited to, the items of plant, equipment and machinery described in
Schedule 1 (Details of
Equipment) and all replacements thereof and additions
thereto.

       

      “Event of Default” has the
meaning given to such term in the Facility Agreement.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      “Finance Document” means the
Facility Agreement, this Debenture and any other document designated as such by
the Lender.

       

      
        	
                 
      

              	
                “Receiver” means any
      receiver, manager, receiver and manager or other similar officer appointed
      by the Lender in respect of the security hereby
  granted.

              


      

       

      "Related Rights" means, in
relation to any asset:

       

      
        	
                (a)  

              	
                the
      proceeds of sale of any part of that
asset;

              


      

       

      
        	
                (b)  

              	
                all
      rights under any licence, agreement for sale or agreement for lease in
      respect of that asset; and

              


      

       

      
        	
                (c)  

              	
                all
      rights, benefits, claims, contracts, warranties, covenants for title,
      negotiable and non-negotiable instruments, guarantees, indemnities,
      security, liens, reservation of proprietary rights, rights of tracing or
      remedies in respect of that asset.

              


      

       

      
        	
                 
      

              	
                “Secured Indebtedness”
      means all monies, obligations and liabilities now or at any time hereafter
      due, owing or incurred to the Lender by the Borrower under the Facility
      Agreement.

              


      

       

      “Security” has the meaning
given to such term in the Facility Agreement.

       

      
        	
                1.2  

              	
                Construction.  In
      this Debenture, unless the context requires
  otherwise:

              


      

       

      
        	
                (a)  

              	
                the
      rules of interpretation contained in Clause 1.2 (Construction) of the
      Facility Agreement shall apply to the construction of this
      Debenture.

              


      

       

      
        	
                (b)  

              	
                Clause
      and Schedule headings are for ease of reference
  only.

              


      

       

      
        	
                (c)  

              	
                the
      security created by or pursuant to this Debenture, and the rights of the
      Lender under this Debenture, shall be enforceable notwithstanding any
      change in the constitution of the Lender or its absorption into, or
      amalgamation with, any other person or the acquisition of all or any part
      of its undertaking by any other
person.

              


      

       

      
        	
                2.  

              	
                PAYMENT OF SECURED
      INDEBTEDNESS

              


      

       

      2.1           Covenant to Pay

       

      The
Borrower hereby covenants with the Lender that it shall pay the Secured
Indebtedness as and when the same falls due for payment in accordance with the
terms of the Facility Agreement or, if they do not specify a time for payment,
immediately on demand by the Lender, provided that neither this covenant nor the
security created by or pursuant to this Debenture shall extend to or include any
obligation or sum which would, but for this proviso, cause such covenant or
security to be unlawful or prohibited by any applicable law.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                3.  

              	
                GRANT OF
      SECURITY

              


      

       

      
        	
                3.1  

              	
                Fixed
      Charges

              


      

       

      The
Borrower hereby charges with full title guarantee in favour of the Lender as
security for the payment and discharge of the Secured Indebtedness, by way of
first fixed charge, all of the Borrower's right, title and interest from time to
time in and to the Equipment (subject to obtaining any necessary consent to such
fixed charge from any third party where applicable).

       

      
        	
                3.2  

              	
                Floating
      Charge

              


      

       

      The
Borrower hereby charges with full title guarantee in favour of the Lender as
security for the payment and discharge of the Secured Indebtedness, by way of
first floating charge, the whole of the Borrower's undertaking and all its
assets, whatsoever and wheresoever situated, both present and future, other than
any assets validly and effectively charged by way of first fixed security
pursuant to Clause 3.1 (Fixed
Charges).

       

      
        	
                3.3  

              	
                Details
      of Charged Property

              


      

       

      The fact
that no details of any Charged Property are included in Schedule 1 (Details of Equipment) does
not affect the validity or enforceability of any security created by or pursuant
to this Debenture.

       

      
        	
                4.  

              	
                CRYSTALLISATION OF
      FLOATING CHARGE

              


      

       

      4.1 Crystallisation
by Notice

       

      The
Lender may at any time by notice in writing to the Borrower convert the floating
charge created by or pursuant to Clause 3.2
(Floating Charge) into
a fixed charge as regards all or any part of the Charged Property specified in
the notice if:

       

      (a)           an
Event of Default has been declared;

       

      
        	
                 
      

              	
                (b)

              	
                the
      Lender reasonably considers that the relevant Charged Property may be in
      jeopardy or in danger of being seized or sold pursuant to any form of
      legal process; or

              


      

       

      
        	
                 
      

              	
                (c)

              	
                the
      Lender reasonably considers that it is desirable to do so in order to
      protect or preserve the security created by or pursuant to this Debenture
      over the relevant Charged Property and/or its
  priority.

              


      

       

      The
service by the Lender of any notice pursuant to this Clause 4.1
in relation to any Charged Property shall not be construed as a waiver or
abandonment of the Lender's rights to serve similar notices in respect of any
other Charged Property or of any other rights of the Lender under this
Debenture.

       

      4.2 Automatic
Crystallisation

       

      (a)           If:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                (i)  

              	
                the
      Borrower takes any step to create any Security over any of the Charged
      Property not subject to a fixed charge or takes any step to dispose of or
      deal with any such Charged Property otherwise than in accordance with the
      terms of this Debenture; or

              


      

       

      
        	
                (ii)  

              	
                any
      person takes any step to levy any expropriation, attachment,
      sequestration, distress, execution or other legal process against any such
      Charged Property,

              


      

       

      the
floating charge created by or pursuant to Clause 3.2
(Floating Charge) shall
automatically (without notice) and with immediate effect be converted into a
fixed charge over such Charged Property.

       

      (b)           If:

       

      
        	
                (i)  

              	
                a
      resolution is passed or an order is made for the winding-up, dissolution
      or re-organisation of the Borrower;

              


      

       

      
        	
                (ii)  

              	
                any
      administrator is appointed in respect of the Borrower or an order is made
      for the administration of the Borrower;
or

              


      

       

      
        	
                (iii)  

              	
                any
      meeting of the directors of the Borrower is convened for the purpose of
      considering any resolution for the administration of, or the appointment
      of an administrator in respect of, the Borrower,

              


      

       

      or any
analogous procedure or step is taken in any jurisdiction, then, without
prejudice to any law which may have a similar effect, the floating charge
created by or pursuant to Clause 3.2
(Floating Charge) shall
automatically (without notice) and with immediate effect be converted into a
fixed charge over all of the Charged Property.

       

      
        	
                4.3  

              	
                De-crystallisation

              


      

       

      If the
floating charge over any Charged Property created by or pursuant to Clause 3.2  (Floating Charge) is converted
into a fixed charge under this Clause 4,
it shall be converted to a floating charge over such Charged Property if the
Lender (in its absolute discretion) gives a notice in writing to the Borrower to
that effect.

       

      
        	
                5.  

              	
                FURTHER
      ASSURANCE

              


      

       

      5.1 General
Further Assurance

       

      The
Borrower shall promptly and at its own expense execute all such documents
(including assignments, transfers, conveyances, mortgages or assurances (whether
in favour of the Lender or any of its nominees)) and do all such acts and things
(including making any filings or registrations and/or giving any notices,
orders, directions or instructions) as the Lender may require (and in such form
and substance as the Lender may require):

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                (a)  

              	
                to
      perfect or protect the security created (or intended to be created)
      pursuant to this Debenture (including, without limitation, the execution
      by the Borrower of a mortgage, charge or other document over all or any of
      the assets constituting (or intended to constitute) Charged Property)
      and/or to perfect or protect the priority of such
  security;

              


      

       

      
        	
                (b)  

              	
                to
      facilitate the realisation of the Charged Property;
  and/or

              


      

       

      
        	
                (c)  

              	
                to
      exercise the Collateral Rights.

              


      

       

      5.2 Necessary
Action

       

      The
Borrower shall take all such action as is available to it (including making all
filings and registrations and/or giving any notices, orders, directions or
instructions) as may be necessary for the purpose of the creation, perfection,
protection or maintenance of any security conferred or intended to be conferred
on the Lender by or pursuant to this Debenture and/or the priority of any such
security.

       

      5.3 Consents

       

      The
Borrower shall obtain as soon as possible (in form and substance reasonably
satisfactory to the Lender) any consent necessary to enable the assets of the
Borrower to be the subject of an effective fixed charge pursuant to Clause 3
(Grant of Security)
and, immediately upon obtaining any such consent, the assets concerned shall
stand charged or, as the case may be, assigned to the Lender under that Clause
and the Borrower shall promptly deliver a copy of each consent to the
Lender.

       

      
        	
                6.  

              	
                REPRESENTATIONS AND
      WARRANTIES IN RELATION TO
      CHARGED PROPERTY

              


      

       

      6.1 Representations
and Warranties

       

      The
Borrower makes the representations and warranties set out in this Clause 6
to the Lender on the date of this Debenture.

       

      6.2 Creation
of Security

       

      This
Debenture creates the security which it purports to create over the Charged
Property and such security has the ranking and priority it is expressed to have
and is not liable to be avoided or otherwise set aside on its liquidation or
administration or otherwise.

       

      6.3 Ownership
of Charged Property

       

      
        	
                (a)  

              	
                It
      is the absolute beneficial owner of, and has good and marketable title to,
      the Equipment over which it purports to create security by or pursuant to
      this Debenture.

              


      

       

      
        	
                (b)  

              	
                It
      has not agreed to create any Security over any of its Charged
      Property.

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      6.4 Accuracy
of Particulars of Charged Property

       

      The
particulars of the Equipment set out in Schedule 1 (Details of Equipment) are
accurate and complete.

       

      6.5 No
Claims in respect of Charged Property

       

      None of
the Charged Property is the subject of any claim, assertion, infringement,
attack, right, action or other restriction or arrangement of whatever nature
which does or may impinge upon the validity of the Charged Property or upon the
ownership, enforceability, enjoyment or utilisation of the Charged Property by
it.

       

      
        	
                7.  

              	
                COVENANTS

              


      

       

      
        	
                7.1  

              	
                Insurance

              


      

       

      The
Borrower agrees that it shall insure and keep insured the Charged Property of an
insurable nature against loss or damage by fire and other usual risks in their
full insurable values and maintain such other insurances as are commonly
maintained by prudent companies carrying on similar businesses or
activities.

       

      
        	
                7.2  

              	
                Maintenance
      of Equipment

              


      

      


       

      The
Borrower agrees that it shall keep the Equipment in good and substantial repair
and in good working order and condition.

       

      
        	
                8.  

              	
                ENFORCEMENT OF
      SECURITY

              


      

       

      8.1 Enforcement

       

      At any
time after the declaration of an Event of Default under Clause 12 of the
Facility Agreement, the security created by or pursuant to this Debenture shall
be immediately enforceable and the Lender may, without notice to the Borrower or
prior authorisation from any court, in its absolute discretion:

       

      
        	
                (a)  

              	
                enforce
      all or any part of that security (at the times, in the manner and on the
      terms it thinks fit); and

              


      

       

      
        	
                (b)  

              	
                take
      possession of and hold or dispose of all or any part of the Charged
      Property.

              


      

       

      8.2 Redemption
of Prior Encumbrances

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                (a)  

              	
                Any
      time after the security created by or pursuant to this Debenture has
      become enforceable, the Lender or any Receiver or Delegate
      may:

              


      

       

      
        	
                (i)  

              	
                redeem
      any prior Security over all or any part of the Charged
      Property;

              


      

       

      
        	
                (ii)  

              	
                procure
      the transfer of any such Security to itself;
  and/or

              


      

       

      
        	
                (b)  

              	
                The
      Borrower shall pay to the Lender on demand all principal monies, interest,
      costs, charges and expenses of and incidental to any such redemption
      and/or transfer.

              


      

       

      
        	
                9.  

              	
                APPOINTMENT OF
      RECEIVER

              


      

       

      9.1 Appointment
and Removal

       

      
        	
                (a)  

              	
                At
      any time after the security created by or pursuant to this Debenture has
      become enforceable or if any corporate action, legal proceedings or other
      procedure or step is taken in relation to the administration of, or the
      appointment of an administrator in respect of, the Borrower or if
      requested to do so by the Borrower, the Lender may by deed or otherwise
      (acting through an authorised officer of the Lender), without prior notice
      to the Borrower:

              


      

       

      
        	
                (i)  

              	
                appoint
      one or more persons to be a Receiver in respect of the Charged
      Property;

              


      

       

      
        	
                (ii)  

              	
                remove
      (so far as it is lawfully able) any Receiver so appointed;
    and

              


      

       

      
        	
                (iii)  

              	
                appoint
      another person (or persons) as an additional or replacement Receiver (or
      Receivers).

              


      

       

      
        	
                (b)  

              	
                Any
      Receiver may be appointed in respect of the whole or any part of the
      Charged Property specified in the instrument appointing him and different
      Receivers may be appointed in respect of different parts of the Charged
      Property. If a Receiver is appointed in respect of a part of the Charged
      Property, the powers and rights conferred on a Receiver as set out in
      Schedule 2 (Powers of
      Receiver) shall have effect as though every reference in that
      Schedule to the Charged Property were a reference to the part of the
      Charged Property specified in the instrument of appointment or to any part
      of that Charged Property.

              


      

       

      9.2 Statutory
Powers of Appointment

       

      The
powers of appointment of a Receiver conferred on the Lender by this Debenture
shall be in addition to all statutory and other powers of appointment conferred
by the Bankruptcy Act 1967 and Bankruptcy Rules 1969 and such powers shall
remain exercisable from time to time by the Lender in respect of any part of the
Charged Property.

       

      9.3 Capacity

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Each
Receiver shall be:

       

      
        	
                (a)  

              	
                entitled
      to act individually or together with any other person appointed or
      substituted as Receiver (except to the extent that the Lender may specify
      to the contrary in the instrument of
  appointment);

              


      

       

      
        	
                (b)  

              	
                deemed
      for all purposes to be the agent of the Borrower which shall be solely
      responsible for his acts, defaults and liabilities and for the payment of
      his remuneration and no Receiver shall at any time act as agent for the
      Lender; and

              


      

       

      
        	
                (c)  

              	
                entitled
      to remuneration for his services at a rate to be fixed by the Lender from
      time to time (without being limited to the prescribed rate under the
      Section 124 of the Bankruptcy Act
1967).

              


      

       

      
        	
                9.4  

              	
                Powers
      of Receiver

              


      

       

      Every
Receiver shall (subject to any restrictions in the instrument appointing him but
notwithstanding any winding-up or dissolution of the Borrower) have and be
entitled to exercise, in relation to the Charged Property (and any assets of the
Borrower which, when got in, would be Charged Property), and as varied and
extended by the provisions of this Debenture (in the name of or on behalf of the
Borrower or in his own name and, in each case, at the cost of the
Borrower):

       

      
        	
                (a)  

              	
                all
      the powers of an administrative receiver under the Bankrupcy Act 1967 and
      the Bankrupcy Rules 1969 (whether or not the Receiver is an administrative
      receiver);

              


      

       

      
        	
                (b)  

              	
                all
      the powers and rights of an absolute owner (including, without limitation,
      all the powers set out in Schedule 1 (Powers of Receivers))
      and the power to do or omit to do anything which the Borrower itself could
      do or omit to do; and

              


      

       

      
        	
                (c)  

              	
                the
      power to do all things (including bringing or defending proceedings in the
      name or on behalf of the Borrower) which seem to the Receiver to be
      incidental or conducive to:

              


      

       

      
        	
                (i)  

              	
                any
      of the functions, powers, authorities or discretions conferred on or
      vested in him;

              


      

       

      
        	
                (ii)  

              	
                the
      exercise of the Collateral Rights (including realisation of all or any
      part of the Charged Property); or

              


      

       

      
        	
                (iii)  

              	
                bringing
      to his hands any assets of the Borrower forming part of, or which when got
      in would be, Charged Property.

              


      

       

      
        	
                9.5  

              	
                Relationship
      with Lender

              


      

       

      To the
fullest extent permitted by law, any right, power or discretion conferred by
this Debenture (either expressly or impliedly) upon a Receiver may, at any time
after the security created by or pursuant to this Debenture becomes

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       enforceable,
be exercised by the Lender, without prior notice to the Borrower in relation to
any Charged Property, irrespective of whether or not it has taken possession of
the Charged Property and without first appointing a Receiver or notwithstanding
the appointment of a Receiver.

       

      
        	
                10.  

              	
                DELEGATION BY THE
      LENDER AND RECEIVER

              


      

       

      
        	
                10.1  

              	
                Discretion

              


      

       

      Any
liberty or power which may be exercised, or any determination which may be made,
under this Debenture by the Lender or any Receiver may be exercised or made in
its absolute and unfettered discretion without any obligation to give
reasons.

       

      
        	
                10.2  

              	
                Delegation

              


      

       

      Each of
the Lender and any Receiver shall have full power to delegate to any person
(either generally or specifically) the powers, authorities and discretions
conferred on it by this Debenture (including any power of attorney) on such
terms and conditions as it shall see fit which delegation shall not preclude the
subsequent exercise of those powers, authorities or discretions by the Lender or
the Receiver, any revocation of the delegation or any subsequent delegation of
any such powers, authorities and discretions. Neither the Lender nor any
Receiver shall be bound to supervise, or be in any way responsible for any loss
incurred by reason of any misconduct or default on the part of, any
Delegate.

       

      
        	
                11.  

              	
                LIABILITY OF LENDER,
      RECEIVER AND DELEGATE

              


      

       

      
        	
                11.1  

              	
                Liability
      of Lender, Receiver and Delegate

              


      

       

      None of
the Lender, any Receiver or Delegate or any of their respective officers,
employees, agents or attorneys shall be liable to the Borrower or any other
person by reason of:

       

      
        	
                (a)  

              	
                taking
      any action permitted by this
Debenture;

              


      

       

      
        	
                (b)  

              	
                taking
      possession of or realising all or any part of the Charged
      Property;

              


      

       

      
        	
                (c)  

              	
                any
      neglect, default or omission in connection with the Charged Property;
      or

              


      

       

      
        	
                (d)  

              	
                the
      exercise, or the attempted or purported exercise, of any of the Collateral
      Rights except in the case of gross negligence or willful default upon its
      part.

              


      

       

      
        	
                11.2  

              	
                No
      Liability as Mortgagee in
Possession

              


      

       

      Without
limiting Clause 11.1
(Liability of Lender, Receiver
and Delegate), entry into or taking possession of all or any part of the
Charged Property shall not render the Lender or any Receiver or Delegate liable
to account as

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       mortgagee
in possession and, if and whenever the Lender or any Receiver or Delegate enters
into or takes possession of the Charged Property, it or he shall be entitled at
any time at its discretion to go out of such possession.

       

      
        	
                12.  

              	
                APPLICATION OF
      MONIES

              


      

       

      
        	
                12.1  

              	
                Order
      of Application

              


      

       

      All
monies received or recovered by the Lender or any Receiver or Delegate pursuant
to this Debenture or the powers conferred by it shall be applied for the
following purposes and in the following order of priority (notwithstanding any
purported appropriation by the Borrower):

       

      
        	
                (a)  

              	
                in
      or towards the satisfaction or reimbursement of all costs, charges and
      expenses incurred, and all payments made, by any Receiver or Delegate, the
      payment of his remuneration and the discharge of any liabilities incurred
      by him in or incidental to the exercise of any of his powers in such order
      as the Lender shall in its absolute discretion
  decide;

              


      

       

      
        	
                (b)  

              	
                in
      or towards the payment of the Secured Indebtedness in such order as the
      Lender shall in its absolute discretion decide;
  and

              


      

       

      
        	
                (c)  

              	
                in
      payment of the surplus, if any, to the Borrower or other person or persons
      entitled to it.

              


      

       

      
        	
                12.2  

              	
                Surplus
      Monies

              


      

       

      If at any
time after satisfaction of the Secured Indebtedness the Lender holds any surplus
monies payable to the Borrower, those monies shall not carry interest and may be
placed to the credit of an account in the name of the Borrower with a bank. The
Lender shall thereupon be under no further liability in respect of such
monies.

       

      
        	
                13.  

              	
                PROTECTION OF
      PURCHASERS

              


      

       

      
        	
                13.1  

              	
                Protection
      of Purchasers

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      No person
dealing with the Lender or any Receiver or Delegate shall be bound to
enquire:

       

      
        	
                (a)  

              	
                whether
      the rights conferred by or pursuant to this Debenture or any other
      document have arisen or become
exercisable;

              


      

       

      
        	
                (b)  

              	
                whether
      any consents, regulations, restrictions or directions relating to such
      rights have been obtained or complied
with;

              


      

       

      
        	
                (c)  

              	
                otherwise
      as to the propriety or regularity of acts purporting or intended to be in
      exercise of any such rights; or

              


      

       

      
        	
                (d)  

              	
                as
      to the application of any money borrowed or raised or whether any amount
      remains secured by this Debenture.

              


      

       

      
        	
                13.2  

              	
                Good
      Discharge

              


      

       

      The
receipt of the Lender or any Receiver or Delegate shall be an absolute and
conclusive discharge to any purchaser of the Charged Property and shall relieve
such purchaser of any obligation to see to the application of any monies paid to
or by the direction of the Lender or any Receiver or Delegate and, in making any
sale or disposal of any of the Charged Property or in making any acquisition,
the Lender or any Receiver or Delegate may do so for such consideration, in such
manner and on such terms as it thinks fit.

       

      
        	
                14.  

              	
                POWER OF
      ATTORNEY

              


      

       

      
        	
                14.1  

              	
                Appointment
      and Powers

              


      

       

      The
Borrower by way of security irrevocably appoints the Lender and each and every
Receiver and Delegate severally (with full power of substitution) to be its
attorney and in its name, on its behalf and as its act and deed, upon this
Debenture becoming enforceable in accordance with Clause 7.1, to execute, seal,
deliver and perfect all documents and do all acts and things which the attorney
may consider to be required or desirable for:

       

      
        	
                 
      

              	
                (a)

              	
                carrying
      out any act or thing which the Borrower is obliged to do (but has not
      done) under this Debenture (including, without limitation, the execution
      and delivery of charges over, transfers, conveyances, mortgages,
      assignments and assurances of, and other instruments relating to, any of
      the Charged Property and/or the giving of any notices, orders, directions
      or instructions in connection with any of the Charged Property);
      and/or

              


      

       

      
        	
                 
      

              	
                (b)

              	
                enabling
      the Lender or any Receiver or Delegate to exercise, or delegate the
      exercise of, any of the Collateral Rights (including, after the occurrence
      of an Event of Default, the exercise of any right of a legal or beneficial
      owner of the Charged Property).

              


      

       

      
        	
                14.2  

              	
                Ratification

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      The
Borrower ratifies and agrees to ratify and confirm all things done, and all
documents executed, by any attorney in the exercise or purported exercise of the
power of attorney granted by it in Clause 14.1
(Appointment and
Powers).

       

      
        	
                15.  

              	
                EFFECTIVENESS OF
      SECURITY

              


      

       

      
        	
                15.1  

              	
                Continuing
      Security

              


      

       

      Subject
to Clause 16
(Release of Security),
the security created by or pursuant to this Debenture is a continuing security
and will extend to the ultimate balance of sums payable by the Borrower in
respect of the Secured Indebtedness, regardless of any intermediate payment or
discharge in whole or in part.

       

      
        	
                15.2  

              	
                Reinstatement
      of Security

              


      

       

      If any
payment by the Borrower or any discharge given by the Lender (whether in respect
of the obligations of the Borrower or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency, administration or
any similar event:

       

      
        	
                (a)  

              	
                the
      liability of the Borrower and the security created by or pursuant to this
      Debenture shall continue as if the payment, discharge, avoidance or
      reduction had not occurred; and

              


      

       

      
        	
                (b)  

              	
                the
      Lender shall be entitled to recover the value or amount of that payment or
      security from the Borrower, as if the payment, discharge, avoidance or
      reduction had not occurred.

              


      

       

      The
Lender may concede or compromise any claim that any payment or discharge is
liable to be avoided or reduced.

       

      
        	
                15.3  

              	
                Immediate
      Recourse

              


      

       

      The
Borrower waives any right it may have of first requiring the Lender to proceed
against or enforce any other rights or security or claim payment from any other
person before enforcing the security created by or pursuant to this Debenture or
otherwise claiming from the Borrower under this Debenture.

       

      
        	
                15.4  

              	
                Additional
      Security

              


      

       

      The
security created by or pursuant to this Debenture and the Collateral Rights are
in addition to and are not in any way prejudiced by any other guarantees or
security now or subsequently held by the Lender.

       

      
        	
                16.  

              	
                RELEASE OF
      SECURITY

              


      

       

      
        	
                16.1  

              	
                Final
      Redemption

              


      

       

      If the
Lender is satisfied that all the Secured Indebtedness has been unconditionally
and irrevocably paid in full and that all facilities which might give rise to
Secured Indebtedness have terminated, the Lender shall, at the

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       request
and cost of the Borrower, release, reassign or discharge (as appropriate) the
Charged Property from the security created by or pursuant to this Debenture,
subject to Clause 16.2
(Avoidance of Payments)
and without recourse to, or any representation or warranty by, the Lender or any
Receiver or Delegate.

       

      
        	
                16.2  

              	
                Avoidance
      of Payments

              


      

       

      If the
Lender considers that any amount paid or credited to it under any Finance
Document is capable of being avoided or reduced by virtue of any bankruptcy,
insolvency, liquidation, administration or similar laws, that amount shall not
be considered to have been paid for the purpose of determining whether all the
Secured Indebtedness has been unconditionally and irrevocably paid.

       

      
        	
                17.  

              	
                SET-OFF

              


      

       

      
        	
                17.1  

              	
                Set-off

              


      

       

      The
Lender may, at any time after the security created by or pursuant to this
Debenture has become enforceable, set off any Secured Indebtedness due from the
Borrower under the Finance Documents against any obligation (contingent or
otherwise) owing by it to the Borrower and apply any credit balance to which the
Borrower is entitled on any account with it in accordance with Clause 12
(Application of Monies)
(notwithstanding any specified maturity of any deposit standing to the credit of
such account).

       

      
        	
                17.2  

              	
                Time
      Deposits

              


      

       

      Without
prejudice to any right of set-off the Lender may have under any Finance Document
(including this Debenture) or otherwise, if any time deposit matures on any
account the Borrower has with the Lender at a time when:

       

      
        	
                 
      

              	
                (a)

              	
                the
      security created by or pursuant to this Debenture has become enforceable;
      and

              


      

       

      
        	
                 
      

              	
                (b)

              	
                no
      amount of the Secured Indebtedness is due and
  payable,

              


      

       

      that time
deposit shall automatically be renewed for any further maturity which the Lender
considers appropriate.

       

      
        	
                18.  

              	
                EXPENSES AND
      INDEMNITIES

              


      

       

      
        	
                18.1  

              	
                Expenses

              


      

       

      The
Borrower shall, promptly on demand, pay to the Lender the amount of all
reasonable costs and expenses (including legal fees) incurred by it or any
Receiver or Delegate in connection with the enforcement, or preservation, of any
of the Collateral Rights or the security created by or pursuant to this
Debenture or any proceedings instituted by or against the Lender or any Receiver
or Delegate as a consequence of enforcing, or preserving, the Collateral Rights
or taking or holding such security.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                18.2  

              	
                Expenditure
      Incurred by Lender

              


      

      


       

      All
reasonable costs and expenses incurred by the Lender hereunder from time to time
for and on behalf of the Borrower and for its account with interest thereon from
the date of such payments relating to insurance, quit rent, assessment, rates,
taxes, repairs, legal costs and all other outgoings shall be recoverable by the
Lender from the Borrower and shall be repaid on demand and until such monies and
interest thereon shall have been paid in full the amount outstanding shall form
part of the amount secured hereunder.

       

      
        	
                18.3  

              	
                General
      Indemnity

              


      

       

      The
Borrower shall, notwithstanding any release or discharge of all or any part of
the security created by or pursuant to this Debenture, promptly on demand
indemnify the Lender, any Receiver and any Delegate against any cost, loss or
liability incurred by any of them or by any of their respective officers,
employees, agents and attorneys as a result of any breach by the Borrower of the
provisions of this Debenture or the exercise or purported exercise of any of the
rights and powers conferred on any of them by this Debenture or otherwise in
connection with the Charged Property or the security created by or pursuant to
this Debenture.

       

      
        	
                18.4  

              	
                Indemnities
      Separate

              


      

       

      Each
indemnity in each Finance Document shall constitute a separate and independent
obligation from the other obligations in that or any other Finance Document,
give rise to a separate and independent cause of action, apply irrespective of
any indulgence granted by the Lender, continue in full force and effect despite
any judgment, order, claim, proof for a liquidated amount in respect of any of
the Secured Indebtedness or any other judgement or order and apply whether or
not any claim under it relates to any matter disclosed by the Borrower or
otherwise known to the Lender.

       

      
        	
                19.  

              	
                RIGHTS, WAIVERS AND
      DETERMINATIONS

              


      

       

      
        	
                19.1  

              	
                Ambiguity

              


      

       

      Where
there is any ambiguity or conflict between the rights conferred by law and those
conferred by or pursuant to any Finance Document, the terms of that Finance
Document shall prevail.

       

      
        	
                19.2  

              	
                Remedies
      and Waivers

              


      

       

      No
failure to exercise, nor any delay in exercising, on the part of the Lender or
any Receiver or Delegate, any Collateral Right shall operate as a waiver, nor
shall any single or partial exercise of any Collateral Right prevent any further
or other exercise or the exercise of any other Collateral Right. The Collateral
Rights are cumulative and not exclusive of any rights or remedies provided by
law.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                19.3  

              	
                Partial
      Invalidity

              


      

       

      If, at
any time, any provision of this Debenture is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired and, if any part of
the security intended to be created by or pursuant to this Debenture is invalid,
unenforceable or ineffective for any reason, that shall not affect or impair any
other part of such security.

       

      
        	
                19.4  

              	
                Determination

              


      

       

      Any
certificate or determination by the Lender or any Receiver or Delegate under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.

       

      
        	
                20.  

              	
                ASSIGNMENT

              


      

       

      The
Lender may assign and transfer all or any of its rights and obligations under
this Debenture.

       

      
        	
                21.  

              	
                NOTICES

              


      

       

      All
notices, requests, demands or other communications to or upon the parties hereto
shall be given in the manner and to the addresses and numbers and with copies
and shall be effective as determined pursuant to Clause 21 (Notices) of the Facility
Agreement.

       

      
        	
                22.  

              	
                GOVERNING
      LAW

              


      

       

      
        	
                22.1  

              	
                This
      Debenture shall be governed by and construed in all respects in accordance
      with the laws of Malaysia.

              


      

      


      
        	
                22.2  

              	
                The
      Parties hereto hereby submit to the jurisdiction of the courts of Malaysia
      in all matters connected with the obligations and liabilities of the
      Parties under this Deed.

              


      

      


       

      
        	
                23.  

              	
                 PRINCIPAL AND
      SUBSIDIARY INSTRUMENT

              


      

       

      It is
hereby agreed and declared that this Debenture and the Facility Agreement are
instruments employed in one transaction to secure the sum of Ringgit One Billion
(RM1,000,000,000) only, interest thereon and all other amounts to be paid by the
Borrower to the Lender hereunder within the meaning of Section 4(3) of the Stamp
Act 1949 and for the purpose of the said section, the Facility Agreement is
deemed to be the principal or primary instrument and this Debenture the
auxiliary or secondary instrument.

      


      This
Deed has been signed on behalf of the Lender and executed as a deed by the
Borrower and is delivered on the date specified above.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
1

       

      Details
of Equipment

       

      ***

       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.

      


       

      


       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
2

       

      Powers
of Receiver

       

      


       

      Without
limiting any other provision of this Debenture, every Receiver shall (subject to
any restrictions in the instrument appointing him but notwithstanding any
winding-up or dissolution of the Borrower) have and be entitled to exercise, in
relation to the Charged Property (and any assets of the Borrower which, when got
in, would be Charged Property) in respect of which he was appointed, and as
varied and extended by the provisions of this Debenture (in the name of or on
behalf of the Borrower or in his own name and, in each case, at the cost of the
Borrower), all or any of the following powers:

       

      
        	
                1.

              	
                Power
      to enter, take possession, assume control of, get in and collect the
      Charged Property and for that purpose to take any proceedings in the name
      of the Borrower or otherwise as the Receiver thinks
  fit.

              


      

       

      
        	
                2.

              	
                Power
      to sell, transfer, assign or otherwise dispose of the Charged Property
      (including any fixtures which may be sold separately from any related land
      comprising part of the Charged Property) to any person (including a new
      company formed under paragraph 5 below), whether or not the Lender or
      Receiver has taken possession, on such terms as the Receiver thinks fit
      and whether:

              


      

       

      (a)           by
public auction, private treaty or by tender;

       

      
        	
                 
      

              	
                (b)

              	
                for
      cash or property or other valuable consideration or in one lot or in
      parcels or on terms that payment of all or any part of the purchase price
      is deferred (whether at interest or not and whether with or without
      security);

              


      

       

      
        	
                 
      

              	
                (c)

              	
                or
      not in conjunction with the sale of other property by the Lender, the
      Receiver or any other person; and

              


      

       

      (d)           with
or without special provisions as to title or time or otherwise.

       

      3.           Power
to receive the rents and profits of the Charged Property.

       

      4.           Power
to manage and carry on any business of the Borrower.

       

      
        	
                5.

              	
                Power
      to form a new company and to subscribe for or acquire (for cash or
      otherwise) any investment in or of the new company and to sell, transfer,
      assign or otherwise dispose of or realise any such investments or any part
      thereof or any rights attaching
thereto.

              


      

       

      
        	
                6.

              	
                Power
      to manage and use the Charged Property and to exercise and do (and permit
      the Borrower (or any of its nominees) to exercise and do) all such rights
      and things as the Receiver would be capable of exercising or doing if he
      were the absolute beneficial owner of the Charged
  Property.

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                7.

              	
                Power
      to enter into any contract or arrangement, and to perform, repudiate,
      rescind, cancel or vary any contract or arrangement to which the Borrower
      is a party, as the Receiver shall think
  expedient.

              


      

       

      
        	
                8.

              	
                Power
      to grant leases, tenancies, licences and rights of user, grant renewals
      and accept surrenders of leases, tenancies, licences or rights of user and
      otherwise to reach agreements and make arrangements with, and to make
      allowances to, any lessees, tenants or other persons (including a new
      company formed under paragraph 5 above) from whom any rents and profits
      may be receivable (including those relating to the grant of any licences,
      the review of rent in accordance with the terms of, and the variation of,
      the provisions of any leases, tenancies, licences or rights of user
      affecting the Charged Property).

              


      

       

      
        	
                9.

              	
                Power
      to pull down, rebuild, repair, alter, decorate, add to, improve, develop,
      complete or maintain the Charged Property (including the development or
      redevelopment of any Charged Property) and to lease or otherwise acquire
      and develop or improve properties or other assets or do anything
      in  connection with the Charged Property without being
      responsible for loss or damage.

              


      

       

      
        	
                10.

              	
                Power
      to take out, maintain, renew or increase insurances in respect of the
      Charged Property in such amounts and on such terms as the Receiver shall
      think fit.

              


      

       

      
        	
                11.

              	
                Power
      to grant to any person an option to purchase or other rights over the
      Charged Property upon such terms as the Receiver shall think
      fit.

              


      

       

      
        	
                12.

              	
                Power
      to add or sever fixtures and fittings and sell or otherwise dispose of or
      deal with them separately from the premises to which they were
      affixed.

              


      

       

      
        	
                13.

              	
                Power
      to raise money either unsecured or on the security of the Charged Property
      (either in priority to the security created by or pursuant to this
      Debenture or otherwise).

              


      

       

      
        	
                14.

              	
                Power
      to enter into bonds, covenants, guarantees, indemnities and other
      commitments and to make all payments needed to effect, maintain or satisfy
      them.

              


      

       

      
        	
                15.

              	
                Power
      to surrender or transfer the Charged Property to any governmental agency
      (whether or not for fair
compensation).

              


      

       

      
        	
                16.

              	
                Power
      to exchange (whether or not for fair value) with any person (including a
      new company formed under paragraph 5 above) any Charged Property for an
      interest in property of any tenure and the property so acquired may be
      dealt with by the Receiver as if it were part of the Charged Property and,
      for that purpose, the Receiver may create an Encumbrance over that
      property in favour of the Lender.

              


      

       

      
        	
                17.

              	
                Power
      to employ managers, solicitors, officers, agents, accountants,
      auctioneers, consultants, workmen and employees on such terms as the
      Receiver shall think fit and to dismiss the same or discharge any such
      persons employed by the Borrower.

              


      

       

      
      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	 	 Receiver shall
      think fit and to dismiss the same or discharge any such persons employed
      by the Borrower.


      

       

      
        	
                18.

              	
                Power
      to receive all payments (including but not limited to book debts, other
      debts, receivables and other monetary claims) and give receipts for all
      monies and other assets which may come into the hands of the Receiver,
      which receipts shall exonerate any person paying or handing over such
      monies or other assets from all liability to see to the application
      thereof and from all liability to enquire whether the Secured Indebtedness
      has become due or payable or otherwise as to the propriety or regularity
      of the appointment of any Receiver.

              


      

       

      
        	
                19.

              	
                Power
      to carry out and enforce, or refrain from carrying out or enforcing,
      rights and obligations of the Borrower forming part of the Charged
      Property or obtained or incurred in the exercise of the rights, powers and
      remedies of the Receiver.

              


      

       

      
        	
                20.

              	
                Power
      to bring, prosecute, enforce, defend and abandon actions, suits and
      proceedings in relation to the Charged Property (including, without
      limitation, for the recovery of book debts, other debts, receivables and
      other monetary claims due to the Borrower) or in any way relating to this
      Debenture, power to settle, adjust, refer to
      arbitration,  compromise and arrange any claims, accounts,
      disputes, questions and demands with or by any person who claims to be a
      creditor of the Borrower or relating to the Charged Property and power to
      execute releases or other discharges in relation
  thereto.

              


      

       

      
        	
                21.

              	
                Power
      to exercise any voting and other rights attached to any shares or
      securities forming part of the Charged
Property.

              


      

       

      
        	
                22.

              	
                Power
      to require payment to the Receiver or to the Lender of any book debts,
      other debts, receivables and other monetary claims due to the Borrower, or
      of any credit balance on any account in the name of the Borrower with any
      bank or financial institution, and power to operate any such
      account.

              


      

       

      
        	
                23.

              	
                Power
      to execute deeds and documents on behalf of the Borrower and do all such
      other acts and things as may be considered by the Receiver to be
      incidental or conducive to any of the matters or powers aforesaid or to
      the realisation of the security created by or pursuant to this Debenture
      or to the exercise of the Collateral Rights and to use the name of the
      Borrower for all the purposes
aforesaid.

              


      

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      IN
WITNESS whereof this Debenture has been executed by the parties hereto and is
intended to be and is hereby delivered on the day and year first above
written.

      


      


      THE
BORROWER

       

      
        	THE COMMON SEAL
      of 	) 
	SUNPOWER
      MALAYSIA	) 
	MANUFACTURING
      SDN. BHD. 	) 
	was affixed to the
      Debenture 	) 
	in the presence
      of 	) 


      

                                                                                         

                                                                                                                                                                                        


      
        
          
            
              	/s/
      Robert David Vinje 	/s/
      Lim Poh Seng 
	
                      Name:  Robert
      David Vinje

                    	
                      Name:  Lim
      Poh Seng

                    
	
                      Designation:  Director

                    	
                      Designation:  Company
      Secretary

                    
	
                      NRIC/Passport
      No.:  076374772

                    	
                      NRIC/Passport
      No.:  710228-10-5519

                    


            

          

        

      

      


      


      


      


      


      


      


      THE
LENDER

       

      
        
          
            
              
                
                  
                    	Signed for and on
      behalf of 	) 	
                            /s/ DATUK LATIFAH
      BT. DATUK ABU MANSOR 

                          
	GOVERNMENT
      OF MALAYSIA 	) 	 DATUK LATIFAH
      BT. DATUK ABU MANSOR
	in the presence
      of	) 	 Deputy
      Secretary General (Policy)
	 	) 	 Ministry of
      Finance
Malaysia


                  

                

              

            

          

        

      

       

      /s/ Wong Wen Min

      Wong Wen Min

      I/C (571004-13-5404)

      


      


      


      


      


      


      


      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      


      


      


      ATTESTATION

      


      


      


      I
............................... (Magistrate, Justice of the Peace, Land
Administrator, Notary Public, Commissioner for Oaths, Bank Official or Advocate and Solicitor of
the High Court in Malaya) officiating [or practising] at
..............................., hereby certify that on this ..... day of
................ ..., the common seal of SUNPOWER MALAYSIA MANUFACTURING SDN.
BHD. was duly affixed to the above written instrument in my presence in
accordance with the regulations of the said Company.

      


      Witness
my hand,

      


      


      


      


      


      



      
        
          
            


            Execution