OTHER PARTY HERETO OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(iii)
WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY
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NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN SECTION
10(h)(ii). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(iv)
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER FINANCING DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(h).
(i)
Counterparts and Electronic Signatures. This Agreement may be
executed in one or more counterparts, each of which will be deemed to be an
original copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement. The facsimile, email or other
electronically delivered signatures of the parties shall be deemed to constitute
original signatures, and facsimile or electronic copies hereof shall be deemed
to constitute duplicate originals.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated
Credit Support Agreement to be executed as of the day and year first written
above.
SUNPOWER CORPORATION,
as the Company
By: /s/ Charles Boynton
Name: Charles Boynton
Title: Executive Vice President and Chief Financial Officer
TOTAL S.A.,
as the Guarantor
By: /s/ Patrick de La Chevardière
Name: Patrick de
La Chevardière
Title: Chief Financial Officer
Exhibit A
Form of Guaranty
This GUARANTY (the "Guaranty"), dated ___________, ___ is between Total S.A., a
société anonyme organized under the laws of the Republic of France (the
"Guarantor"), and [BANK], a ________________________, having its registered
office at ___________________ (the "Bank").
RECITALS
A.
SunPower Corporation (the "Obligor") wishes to enter into a Letter
of Credit Facility Agreement (the "Contract") with the Bank, the form of which
Contract has been provided to the Obligor and to the Guarantor.
B.
It is a condition precedent to the Bank's extension of credit under
the Contract that the Guarantor guarantee the payment to the Bank of the
Obligor's payment obligations under the