1.

Definitions and Interpretation

2.

The Facilities

3.

Purpose

4.

Conditions of Utilisation

5.

Utilisation

6.

Repayment

7.

Prepayment and Cancellation

8.

Interest and Interest Periods

9.

Fees

10.

Tax Gross-up and Indemnities

11.

Increased Costs

12.

Mitigation by the Lenders

13.

Other Indemnities

14.

Costs and Expenses

15.

Guarantee and Indemnity

16.

Representations

17.

Information Undertakings

18.

Financial Covenants

19.

General Undertakings

20.

Events of Default

21.

Changes to the Lenders

22.

Changes to the Obligors

23.

Accession of a new Facility Agent

24.

Sharing among the Finance Parties

25.

Payment Mechanics

26.

Set-off

27.

Notices

28.

Calculations and Certificates

29.

Partial Invalidity

30.

Remedies and Waivers

31.

Amendments and Waivers

32.

Confidential Information

33.

Confidentiality of Funding Rates

34.

Counterparts

35.

Governing Law

36.

Enforcement

Schedule 1 The Original Lenders

Part I The Original SP Philippines Facility Lenders

Part II The Original Maxeon Term Facility Lenders

Part III The Original Working Capital Lenders

Schedule 2 Conditions Precedent

Schedule 3 Requests

Part I Utilisation Request

Part II Selection Notice

Schedule 4 Form of Transfer Certificate

Schedule 5 Form of Assignment Agreement

Schedule 6 Form of Compliance Certificate

Schedule 7 Form of Resignation Letter

Schedule 8 Forms of Accession Letters

Part I Accession Letter – Additional Guarantor

Part II Accession Letter – Philippines Onshore Security Agent

Schedule 9 Existing Financial Indebtedness and Security

Schedule 10 Timetables

Schedule 11 Financial Covenant Definitions

Schedule 12 Polysilicon Purchase Contract Payment Profile

MAXEON SOLAR TECHNOLOGIES, PTE. LTD., a company incorporated in Singapore with registered number 201934268H and its registered address at 8 Marina Boulevard #05-02, Marina Bay Financial Centre, 018981, Singapore, as borrower in respect of the Maxeon Term Facility and the Working Capital Facility (the “Company”);

SUNPOWER PHILIPPINES MANUFACTURING LTD., an exempted company incorporated in the Cayman Islands with registration number 125924 and its registered office address at 190 Elgin Avenue, George Town, Grand Cayman KY1-9005, Cayman Islands, as borrower in respect of the SP Philippines Facility (“SunPower Philippines”, and together with the Company, the “Borrowers”);

MAXEON SOLAR TECHNOLOGIES, PTE. LTD., SUNPOWER SYSTEMS SARL (the “Swiss Guarantor”), SUNPOWER ENERGY SOLUTIONS FRANCE S.A.S. (the “French Guarantor”) and SUNPOWER CORPORATION MEXICO, S. DE R.L. DE C.V. (the “Mexican Guarantor”) as guarantors (the “Original Guarantors”);

THE FINANCIAL INSTITUTIONS listed in Part I of Schedule 1 as lenders under the SP Philippines Facility (the “Original SP Philippines Facility Lenders”);

THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders under the Maxeon Term Facility (the “Original Maxeon Term Facility Lenders”);

THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 as lenders under the Working Capital Facility (the “Original Working Capital Lenders”)

DBS BANK LTD. as intercreditor agent of the Finance Parties (other than itself) (the “Intercreditor Agent”);

DBS BANK LTD. as agent of the SP Philippines Facility Finance Parties (other than itself) (the “SP Philippines Facility Agent”);

DBS BANK LTD. as agent of the Maxeon Term Facility Finance Parties (other than itself) (the “Maxeon Term Facility Agent”);

DBS BANK LTD. as agent of the Working Capital Finance Parties (other than itself) (the “Working Capital Facility Agent”, and together with the SP Philippines Facility Agent and the Maxeon Term Facility Agent, the “Facility Agents”); and

DBS BANK LTD. as offshore Security Agent for the Secured Parties (the “Offshore Security Agent”).

DEFINITIONS AND INTERPRETATION

Definitions

an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or

in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

in relation to the SP Philippines Facility, the period from and including the date of Financial Close to and including the date falling 12 Months after Financial Close;

in relation to the Maxeon Term Facility, the period from and including the date of Financial Close to and including the date falling 12 Months after Financial Close; and

in relation to the Working Capital Facility, the period from and including the date of Financial Close to and including the date falling one Month prior to the Termination Date.

its participation in any outstanding Loans under that Facility; and

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom); and

section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung).

the interest (excluding Margin (as defined in the relevant Facility Agreement)) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

any member of the Group or any of its advisers; or

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

information that:

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 32 (Confidential Information);

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

any Funding Rate.

significant harm is being caused or there is a significant possibility of harm being caused; or

pollution of controlled waters is being, or is likely to be caused.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; and

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

in respect of the SP Philippines DSRA, an amount equal to the principal and interest projected by the relevant Facility Agent to accrue in the following six (6) Months under the SP Philippines Facility Loans then outstanding; and

in respect of the Maxeon DSRA, an amount equal to the principal and interest projected the relevant Facility Agent to accrue in the following six (6) Months under the Maxeon Term Facility Loans then outstanding,

assuming no prepayments or repayments of the relevant Term Loans will occur in such six (6) Month period (other than scheduled repayments provided for under the relevant Facility Agreement);

assuming no change to LIBOR in such six (6) Month period; and

taking into account interest rate hedging then in place in respect of the relevant Term Loans, if applicable.

sections 1471 to 1474 of the Code or any associated regulations;

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

this Agreement;

the SP Philippines Facility Agreement;

the Maxeon Term Facility Agreement;

the Working Capital Facility Agreement;

the Intercreditor Agreement;

each Security Document;

each Utilisation Request;

any Fee Letter;

any Transfer Certificate or Assignment Agreement;

any Accession Undertaking;

any Accession Letter;

any Hedging Agreement; and

any other document designated as such by the Intercreditor Agent and the Company,

the definition of “Default”;

the definition of “Material Adverse Effect”;

paragraph (a)(iii) of Clause 1.2 (Construction);

Clause 15 (Guarantee and Indemnity); and

Clause 20 (Events of Default) (other than Clause 20.17 (Acceleration)).

paragraph (a)(i) of Clause 1.2 (Construction);

paragraph (c) of the definition of “Material Adverse Effect”;

Clause 15 (Guarantee and Indemnity); and

Clause 12.3 (Conduct of business by the Finance Parties).

moneys borrowed;

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing or otherwise classified as borrowings in accordance with GAAP;

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above,

holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the United Kingdom (or any subdivision of such a country or territory);

exercises a public function:

for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or territory); or

for any public agency or public enterprise of that country or territory (or subdivision); or

is an official or agent of a public international organisation.

in respect of the Company or the Group on a consolidated basis, generally accepted accounting principles in the United States of America; and

in respect of SunPower Philippines, generally accepted accounting principles in the Philippines.

the Polysilicon Purchase Contract;

the Chinese JV Supply Contract; and

each SP Malaysia Intra-Group Loan.

in relation to an Original Maxeon Term Facility Lender, the amount set opposite its name under the heading “Maxeon Term Facility Commitment” in Part II of Schedule 1 (The Original Maxeon Term Facility Lenders) and the amount of any other Maxeon Term Facility Commitment transferred to it under the Maxeon Term Facility Agreement; and

in relation to any other Maxeon Term Facility Lender, the amount of any Maxeon Term Facility Commitment transferred to it under the Maxeon Term Facility Agreement,

any Original Maxeon Term Facility Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party as a Maxeon Term Facility Lender in accordance with Clause 21 (Changes to the Lenders) and the Maxeon Term Facility Agreement,

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

in relation to the Company:

the audited carve-out financial statements for the Company for the financial year ending 31 December 2019; and

the unaudited carve-out financial statements for the Company for the three (3) month period ending 29 March 2020 / pro forma balance sheet as of 29 March 2020 and income statement for the three (3) month period ending 29 March 2020; and

in relation to SunPower Philippines, its audited financial statements for its financial year ended 31 December 2019; and

in relation to each other Obligor, its unaudited management financial statements for the financial year ending 31 December 2019.

the Philippines Omnibus Security Agreement;

the SPML Land Security Documents; and

the Philippines Charged Accounts Control Agreements, the Philippines Share Charge Control Agreements, and such other agreements that are executed between SunPower Philippines and the Philippines Onshore Security Agent, among other parties (as applicable) pursuant to the Philippines Omnibus Security Agreement.

all members of the Group, including, if known, the name and company registration number, its jurisdiction of incorporation and/or its jurisdiction of establishment and a list of shareholders (except that a list of the shareholders in the Company will not be required to be included); and

any person in which any member of the Group will hold shares in its issued share capital or equivalent ownership interest of such person,

listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;

located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or

otherwise a Target of Sanctions.

the United States government;

the United Nations;

the European Union;

the United Kingdom;

the Cayman Islands;

Singapore;

the Philippines;

Mexico;

Hong Kong;

Switzerland; and

the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State and Her Majesty’s Treasury (“HMT”) (together the “Sanctions Authorities”).

when executed, the all-asset security agreement dated on or after the date hereof and entered into by the Company in favour of the Offshore Security Agent (including, without limitation, security over the Maxeon DSRA);

when executed, the omnibus security agreement dated on or after the date hereof and entered into by SunPower Philippines in favour of the Philippines Onshore Security Agent including (for the avoidance of doubt) share security in respect of all of the shares held by SunPower Philippines in SPML Land (the “Philippines Omnibus Security Agreement”);

when executed, the all-asset security agreement dated on or after the date hereof and entered into by Maxeon Rooster HoldCo, Ltd. in favour of the Offshore Security Agent;

when executed, the SPML Land Security Documents;

each Share Charge;

when executed, each Philippines Charged Accounts Control Agreement;

when executed, each Philippines Share Charge Control Agreement;

when executed, the Account Charge; and

when executed, any other Philippines Security Document.

the share charge dated on or after the date of this Agreement and entered into by the Company in favour of the Offshore Security Agent in respect of all of the shares held by the Company in the French Guarantor;

the share charge dated on or after the date of this Agreement and entered into by the Company in favour of the Offshore Security Agent in respect of all of the shares held by the Company in Maxeon Rooster HoldCo, Ltd.;

the share charge dated on or after the date of this Agreement and entered into by the Company in favour of the Offshore Security Agent in respect of all of the shares held by the Company in SunPower Energy Corporation Limited;

the share charge dated on or after the date of this Agreement and entered into by the Company in favour of the Offshore Security Agent in respect of all of the shares held by the Company in SunPower Corporation Limited;

the share charge dated on or after the date of this Agreement and entered into by the Company in favour of the Offshore Security Agent in respect of all of the shares held by the Company in SunPower Manufacturing Corporation Limited;

the equitable share mortgage dated on or after the date of this Agreement and entered into by SunPower Technology Ltd. in favour of the Offshore Security Agent in respect of all of the shares held by SunPower Technology Ltd. in SunPower Philippines; and

the Philippines Omnibus Security Agreement.

the parcel of land covered by Transfer Certificate of Title No. T-433155 issued by the Register of Deeds for the Province of Laguna, Calamba Branch, with an area of 88,705 square meters more or less, located in Binan, Laguna, Philippines, including the building standing on the Land, with a floor area of Twenty Thousand (20,000) square metres and covered by Tax Declaration No. 03-010-08334 of Binan, Laguna, Philippines, dated 01 January 2009; and

the parcel of land covered by Transfer Certificate of Title No. T-103232 issued by the Register of Deeds of Tanaun, Batangas, Philippines, with an area of 86,456 square meters more or less, located in Sta. Anastacia. Sto. Tomas, Batangas, Philippines, including the building standing on the Land, with a floor area of Thirty-One Thousand Nine Hundred Sixty (31,960) square metres and covered by Declaration of Real Property No. T-13257 of Tanauan, Batangas, Philippines, for tax year 2010.

the accession agreement executed by SPML Land; and

the Philippines Omnibus Security agreement to which SPML Land accedes as a Security Provider in respect of the SPML Land Real Property.

in relation to an Original SP Philippines Facility Lender, the amount set opposite its name under the heading “SP Philippines Facility Commitment” in Part I of Schedule 1 (The Original SP Philippines Facility Lenders) and the amount of any other SP Philippines Facility Commitment transferred to it under the SP Philippines Facility Agreement; and

in relation to any other SP Philippines Facility Lender, the amount of any SP Philippines Facility Commitment transferred to it under the SP Philippines Facility Agreement,

any Original SP Philippines Facility Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party as an SP Philippines Facility Lender in accordance with Clause 21 (Changes to the Lenders) and the SP Philippines Facility Agreement,

which is controlled, directly or indirectly, by the first mentioned company or corporation;

more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.

a Borrower which is resident for tax purposes in the US; or

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

in relation to an Original Working Capital Lender, the amount set opposite its name under the heading “Working Capital Commitment” in Part III of Schedule 1 (The Original Working Capital Lenders) and the amount of any other Working Capital Commitment transferred to it under the Working Capital Facility Agreement; and

in relation to any other Working Capital Lender, the amount of any Working Capital Commitment transferred to it under the Working Capital Facility Agreement,

any Original Working Capital Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party as a Working Capital Lender in accordance with Clause 21 (Changes to the Lenders) and the Working Capital Facility Agreement,

made or to be made on the same day that a maturing Working Capital Loan is due to be repaid;

the aggregate amount of which is equal to or less than the amount of the maturing Working Capital Loan;

in the same currency as the maturing Working Capital Loan; and

made or to be made to the Company for the purpose of refinancing that maturing Working Capital Loan.

Construction

Unless a contrary indication appears, any reference in this Agreement to:

any “Administrative Party”, a “Facility Agent”, a “Security Agent”, any “Finance Party”, any “Lender”, any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

“assets” includes present and future properties, revenues and rights of every description;

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

“including” shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);

a “group of Lenders” includes all the Lenders;

“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

a Lender’s “participation” in a Loan or Unpaid Sum includes an amount (in the currency of such Loan or Unpaid Sum) representing the fraction or portion (attributable to such Lender by virtue of the provisions of this Agreement) of the total amount of such Loan or Unpaid Sum and the Lender’s rights under this Agreement in respect thereof;

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

a “relevant Facility Agent” in respect of a Facility, a Lender or a Borrower is a reference to the Facility Agent appointed in respect of that Facility, that Lender or that Borrower under the relevant Facility Agreement;

a provision of law is a reference to that provision as amended or re-enacted from time to time; and

a time of day is a reference to Singapore time.

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

Section, Clause and Schedule headings are for ease of reference only.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

A Default (other than an Event of Default) is “continuing” if it has not been remedied (to the extent capable of remedy) or waived and an Event of Default is “continuing” if it has not been remedied (to the extent capable of remedy) or waived, provided that in each case no Acceleration Event has occurred at the time of remedy.

Where this Agreement specifies an amount in a given currency (the “specified currency”) “or its equivalent”, the “equivalent” is a reference to the amount of any other currency which, when converted into the specified currency utilising the relevant Facility Agent’s spot rate of exchange (or, if the relevant Facility Agent does not have an available spot rate of exchange, any publicly available spot rate of exchange selected by the relevant Facility Agent (acting reasonably)) for the purchase of the specified currency with that other currency at or about 11 a.m. on the relevant date, is equal to the relevant amount in the specified currency.

Currency symbols and definitions

Third party rights

Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

Intercreditor Agreement

THE FACILITIES

The Facilities

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

Obligors’ Agent

Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

Solely for the purpose of Mexican law, the Mexican Guarantor shall grant to the Company, before a Mexican notary public, an irrevocable power of attorney for ownership acts (poder para actos de dominio), administrative acts (poder para actos de administración) and lawsuits and collections (poder para pleitos y cobranzas) governed by the laws of Mexico. Until such power of attorney has been granted, the provisions of this Clause 2.3(c) and Clause 36.2 (Service of Process) shall not apply to the Mexican Guarantor

PURPOSE

Purpose

The Company shall apply all amounts borrowed by it under the Working Capital Facility towards:

the purchase of; or

on-lending amounts borrowed to any person who is a member of the Group for such member of the Group to apply towards the purchase of,

solar panels, modules and cells from other members of the Group and the Chinese Joint Venture (such solar panels, modules and cells being the “Eligible Equipment”) for onward sale by any member of the Group to wholesale purchasers (other than members of the Group) of such Eligible Equipment.

The Company shall apply all amounts borrowed by it under the Maxeon Term Facility towards capex maintenance, working capital and general corporate purposes, provided that the Company shall not apply any amounts towards capital expenditure in relation to Maxeon 7 technology.

SunPower Philippines shall apply all amounts borrowed by it under the SP Philippines Facility towards capex maintenance, working capital and general corporate purposes, provided that SunPower Philippines shall not apply any amounts towards capital expenditure in relation to Maxeon 7 technology.

Monitoring

CONDITIONS OF UTILISATION

Initial conditions precedent

No Borrower may deliver a Utilisation Request unless the Facility Agents have received all of the documents and other evidence listed in and appearing to comply with the requirements of Schedule 2 (Conditions Precedent). Each Facility Agent shall notify the Borrowers and the relevant Lenders upon receipt of such documents and evidence.

Other than to the extent that the Majority Lenders in respect of a Facility notify the relevant Facility Agent in writing to the contrary before that Facility Agent gives the notification described in paragraph (a) above, the Lenders under each Facility authorise (but do not require) the relevant Facility Agent to give that notification. No Facility Agent shall be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Further conditions precedent

in respect of any Utilisation of the SP Philippines Facility that relates to capital expenditure, SunPower Philippines has provided to the SP Philippines Facility Agent documentary evidence and/or invoices in form and substance satisfactory to the SP Philippines Lenders evidencing such eligible capital expenditure, and demonstrating to the SP Philippines Facility Lenders’ satisfaction that the amount requested in the relevant Utilisation Request is not greater than 90% of the amount of such capital expenditure;

in respect of any Utilisation of the Maxeon Term Facility that relates to capital expenditure, the Company has provided to the Maxeon Term Facility Agent documentary evidence and/or invoices in form and substance satisfactory to the Maxeon Term Facility Lenders evidencing such eligible capital expenditure, and demonstrating to the Maxeon Term Facility Lenders’ satisfaction that the amount requested in the relevant Utilisation Request is not greater than 90% of the amount of such capital expenditure; and

on the date of the Utilisation Request and on the proposed Utilisation Date:

in the case of a Working Capital Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

the Repeating Representations to be made by each Obligor are true in all material respects.

Conditions Subsequent

The Borrowers shall use reasonable commercial efforts to deliver to the Facility Agents the following documents:

a notarised copy of SPML Land’s secretary’s certificate certifying the following as true, complete and up-to-date:

a copy of the certificate of incorporation of SPML Land;

a copy of the articles of incorporation of SPML Land as amended to date, specifically including, among other things, the power to provide security for the obligations of a stockholder or of any other corporation as among its corporate purposes;

a copy of the by-laws of SPML Land as amended to date;

a copy of a resolution of the board of directors of SPML Land:

approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute, or ratifying the execution of (as applicable), the Finance Documents to which it is a party;

authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf;

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and

confirming that the execution and performance by it of the Finance Documents to which it is a party and its obligations under the Finance Documents to which it is a party are in furtherance of its corporate interest, and that it derives direct and indirect economic and other corporate benefit from the arrangements contemplated in the Finance Documents to which it is a party; and

a notarised copy of SPML Land’s secretary’s certificate certifying that holders of the issued shares in SPML Land representing at least 2/3 of its outstanding capital stock have approved the grant by SPML Land of the security over its assets for the obligations of the Obligors under the Finance Documents, and the terms of, and the transactions contemplated by, the Finance Documents to which it is a party;

duly executed originals of the SPML Land Security Documents;

evidence that the perfection steps set out in the SPML Land Security Documents have been completed;

a copy of SPML Land’s latest:

General Information Sheet as filed with the Securities and Exchange Commission of the Philippines;

Audited Financial Statements as filed with the Bureau of Internal Revenue of the Philippines; and

Income Tax Returns as filed with the Bureau of Internal Revenue of the Philippines; and

a legal opinion of SyCip Salazar Hernandez & Gatmaitan in respect of SPML Land and the SPML Land Security Documents.

Within sixty (60) days of Financial Close, the Obligors shall provide to the Facility Agents:

evidence that, in respect of each Obligor, all risk insurance has been placed with an insurer acceptable to the Intercreditor Agent, and that such policies of insurance have been endorsed to include the relevant Security Agent as assignee / loss payee; and

evidence of insurance coverage in respect of the assets of the Group (excluding SunPower Malaysia) for an amount no less than the higher of (i) the Total Commitments as at the date of this Agreement and (ii) the value of the land and buildings disclosed in the Valuation Report, including, without limitation, volcano risk and natural disaster insurance, each listing the relevant Security Agent as sole loss payee, together with a formal report from Aon as insurance adviser to the Finance Parties confirming the sufficiency of coverage of such insurance.

Within fifteen (15) Business Days of the date of this Agreement, the Mexican Guarantor shall provide to the Intercreditor Agent the signed execution copies of the public deeds containing the powers of attorney described in Clause 2.3(c) (Obligors’ Agent) and 36.2(c) (Service of process).

Maximum number of Loans

A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

four (4) or more SP Philippines Facility Loans would be outstanding;

four (4) or more Maxeon Term Facility Loans would be outstanding; or

ten (10) or more Working Capital Facility Loans would be outstanding (or such higher number of Working Capital Facility Loans as the Working Capital Facility Agent may agree (acting on the instructions of the Working Capital Facility Lenders)).

A Borrower may not request that a Term Loan be divided if, as a result of the proposed division, four (4) or more Term Loans under the relevant Facility would be outstanding.

A Borrower may not request that a Working Capital Loan be divided.

UTILISATION

Delivery of a Utilisation Request

Subject to paragraph (b) below, a Borrower may utilise a Facility during the relevant Availability Period by delivery to the relevant Facility Agent of a duly completed Utilisation Request not later than the Specified Time.

The Company shall ensure that for a period of not less than five (5) consecutive Business Days in each Twelve-month Period no Working Capital Loans are outstanding under the Working Capital Facility.

For the purpose of this Clause 5.1, a “Twelve-month Period” means the period starting on 2 January in each calendar year and ending on 1 January of the following calendar year, provided that:

the first Twelve-month Period shall start on 2 January 2021; and

the final Twelve-month Period shall end on the last occurring 1 January prior to the Termination Date.

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

it identifies the Facility to be utilised;

the proposed Utilisation Date is a Business Day within the Availability Period;

the currency and amount of the Utilisation comply with Clause 5.2 (Currency and amount); and

the proposed Interest Period complies with the provisions of the relevant Facility Agreement.

Only one Loan may be requested in each Utilisation Request.

Currency and amount

The currency specified in a Utilisation Request must be US dollars.

The amount of the proposed Loan must be an amount which is:

not more than the Available Facility; and

a minimum of:

US$10,000,000 (and integral multiples of US$5,000,000) in the case of any Utilisation of a Term Facility; or

US$2,000,000 in the case of any Utilisation of the Working Capital Facility,

(or in each case such other amount as the relevant Lenders under the relevant Facility may agree) or, if less, the Available Facility in respect of that Facility.

Lenders’ participation

If the conditions set out in this Clause 5 (Utilisation) and Clause 4 (Conditions precedent) have been met, and subject to clause 2 (Repayment of Working Capital Loans) of the Working Capital Facility Agreement (in the case of a Utilisation of the Working Capital Facility), each Lender in respect of the relevant Facility shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

The amount of each relevant Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment in respect of the relevant Facility to the Available Facility in respect of the relevant Facility immediately prior to making the Loan.

The relevant Facility Agent shall notify each relevant Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 25.1 (Payments to the Facility Agents) in each case by the Specified Time.

Cancellation of Commitment

First Utilisation

the Convertible Bonds have been issued, and the net proceeds of such issuance have been received in full by the Company;

the Spin-Off has been completed;

the TZS Equity Contribution has been made in full;

the Promissory Note has been repaid in full; and

the following documents have been delivered to the Intercreditor Agent in respect of the HK Guarantor:

an Accession Letter executed by the HK Guarantor acceding to this Agreement;

a copy of the constitutional documents and statutory registers (if applicable) of the HK Guarantor (including the HK Guarantor JV Agreement);

a copy of a resolution of the board of directors of the HK Guarantor, passed by way of unanimous affirmative votes of all the directors of the HK Guarantor:

approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;

authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf;

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and

resolving that it is in the best interests of the HK Guarantor to enter into the transactions contemplated by the Finance Documents to which it is a party, giving reasons;

a specimen of the signature of each person authorised by the resolutions referred to in paragraph (iii) above;

a copy of a resolution signed by all the holders of the issued equity interest or shares (as applicable) in the HK Guarantor;

a copy of a consent letter executed by the shareholders in the HK Guarantor and the Intercreditor Agent consenting to the terms of the Finance Documents for the purposes of the HK Guarantor JV Agreement;

a certificate from the HK Guarantor confirming that borrowing, guaranteeing and/or securing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing, security or similar limit binding on it to be exceeded;

a certificate of an authorised signatory of the HK Guarantor certifying that each copy document relating to it specified in this Clause 5.5(e) is correct, complete and in full force and effect as at a date no earlier than the date of the relevant Accession Letter; and

legal opinions issued by Clifford Chance in respect of the HK Guarantor and the Accession Letter referred to in paragraph (i) above;

the aggregate amount of (i) the proceeds of the Convertible Bonds; (ii) the Total Commitments and (iii) any undrawn amount of the facility limits under the trade finance facility in favour of SunPower Malaysia (as permitted by this Agreement) listed at item 2 in Schedule 9 (Existing Financial Indebtedness and Security) available to be drawn immediately after Closing (as defined under the TZS Equity Subscription Agreement) are greater than or equal to USD 325,000,000.

REPAYMENT

Repayment of Maxeon Term Facility Loans

Repayment of SP Philippines Facility Loans

Repayment of Working Capital Loans

PREPAYMENT AND CANCELLATION

Illegality

that Lender shall promptly notify the relevant Facility Agent upon becoming aware of that event;

upon the relevant Facility Agent notifying the Company, the Available Commitment of that Lender will be immediately cancelled; and

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 7.4 (Right of prepayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the relevant Facility Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the relevant Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

Voluntary cancellation

Voluntary prepayment

A Borrower to which a Loan has been made may, if it gives the relevant Facility Agent not less than ten (10) Business Days’ (or such shorter period as the Majority Lenders for the relevant Facility may agree) prior notice, prepay the whole or any part of any such Loan (but, if in part, being an amount that reduces that Loan by a minimum amount of USD 5,000,000 (and integral multiples of USD 1,000,000 in excess thereof)).

A Borrower may partially prepay a Term Loan only after the end of the Availability Period in respect of the relevant Term Facility (provided that nothing in this paragraph (b) shall preclude the prepayment and cancellation of a Term Loan in full at any time).

Right of prepayment and cancellation in relation to a single Lender

If:

any sum payable to any Lender by an Obligor is required to be increased under paragraph (a) of Clause 10.2 (Tax gross-up); or

any Lender claims indemnification from the Company under Clause 10.3 (Tax indemnity) or Clause 11.1 (Increased Costs),

the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the relevant Facility Agent(s) notice of cancellation of the Commitment(s) of that Lender and its intention to procure the prepayment of that Lender’s participation in the Loans or give the relevant Facility Agent(s) notice of its intention to replace that Lender in accordance with paragraph (d) below.

On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall prepay that Lender’s participation in that Loan and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

If:

any of the circumstances set out in paragraph (a) above apply to a Lender;

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender; or

a Lender becomes a Non-Consenting Lender (as defined in paragraph (g) below),

the Company may, on twenty (20) Business Days’ prior notice to the relevant Facility Agent(s) and that Lender, replace that Lender (or, as the context may require, a portion of its Commitment) by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 21 (Changes to the Lenders)and the relevant Facility Agreement(s):

in the case of paragraph (d)(iii) above:

where that Lender has split its Commitment in accordance with paragraph 3.1(c) (Voting provisions) of schedule 4 (Voting and decision making) of the Intercreditor Agreement, all (and not part only) of its rights and obligations under the Finance Documents which relate to the portion of its Commitment that is attributable to that Lender being a Non-Consenting Lender; and

where that Lender has not split its Commitment in accordance with paragraph 3.1(c) (Voting provisions) of schedule 4 (Voting and decision making) of the Intercreditor Agreement and is a Non-Consenting Lender, all (and not part only) of its rights and obligations under the Finance Documents; or

in the case of paragraphs (d)(i) or (d)(ii) above, all (and not part only) of its rights and obligations under the Finance Documents,

to a Lender or other bank, financial institution, trust, fund or other entity selected by the Company which (A) is not a member of the Group and (B) confirms its willingness to assume and does assume all the relevant obligations of the transferring Lender in accordance with Clause 21 (Changes to the Lenders) and the relevant Facility Agreement(s) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of (if applicable, the relevant portion of) such Lender’s participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

The replacement of all or part of a Lender’s Commitment pursuant to paragraph (d) above shall be subject to the following conditions:

the Company shall have no right to replace the Intercreditor Agent, a Facility Agent or Security Agent;

no Facility Agent, Intercreditor Agent nor any Lender shall have any obligation to find a replacement Lender;

in the event of a replacement of all or part of a Non-Consenting Lender’s Commitment such replacement must take place no later than ninety (90) days after the date on which that Lender is deemed to be a Non-Consenting Lender in respect of all or part of its Commitment;

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

no Lender shall be obliged to execute a Transfer Certificate unless it is satisfied that it has completed all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct in relation to the transfer to such replacement Lender.

A Lender shall perform the procedures described in paragraph (e)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Intercreditor Agent, the relevant Facility Agent(s) and the Company when it is satisfied that it has completed those checks.

In the event that:

an Obligor or the relevant Facility Agent (at the request of an Obligor) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;

the consent, waiver or amendment in question requires the approval of all of the Lenders;

Lenders whose Commitments in respect of a Facility aggregate more than 75% of the Total Facility Commitments in respect of that Facility (or, if the relevant Total Facility Commitments have been reduced to zero, aggregated more than 75% of the Total Facility Commitments prior to that reduction) have consented or agreed to such waiver or amendment,

then any Lender who does not and continues not to consent or agree to such waiver or amendment shall (and if that Lender has split its Commitment in accordance with paragraph 3.1(c) (Voting provisions) of schedule 4 (Voting and decision making) of the Intercreditor Agreement, only in respect of the portion of its Commitment in respect of which it does not and continues not to consent or agree to such waiver or amendment) be deemed to be a “Non-Consenting Lender”.

Restrictions

Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

No Borrower may reborrow any part of a Term Facility which is prepaid.

Unless a contrary indication appears in this Agreement, any part of the Working Capital Facility which is repaid or prepaid may be reborrowed in accordance with the terms of this Agreement and the Working Capital Facility Agreement.

The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

If a Facility Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

If all or part of any Lender’s participation in a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

Application of prepayments

Mandatory prepayment – Disposal Proceeds

The Borrowers shall ensure that all Disposal Proceeds (other than Excluded Disposal Proceeds and Eligible Equipment Disposal Proceeds) are applied in prepayment of the outstanding Loans within five (5) Business Days of these proceeds ceasing to be Excluded Disposal Proceeds or at any earlier time when the Company determines that such proceeds are not Excluded Disposal Proceeds.

Subject to paragraph (c) below, the Company shall apply all Eligible Equipment Disposal Proceeds in prepayment of the Working Capital Facility Loans (or part thereof) that were Utilised for the purchase of such Eligible Equipment promptly (and in any event within ten (10) Business Days of receipt by the Company).

Paragraph (b) above shall not apply if a Default is continuing (other than a Default which relates to the Working Capital Facility only and which has been waived), unless (i) that Default ceases to be continuing without giving rise to an Event of Default; or (ii) if that Default gives rise to an Event of Default, by the date falling twenty (20) Business Days after that Event of Default first arising (or, if the Company exercises its Equity Cure Right pursuant to Clause 18.4 (Equity Cure), by the last day on which the Company may procure the provision of a Cure Amount), (and following the expiry of any Pre-Enforcement Standstill Period (as defined in the Intercreditor Agreement)) no Acceleration Event has occurred.

In this clause 7.7:

“Disposal Proceeds” means the consideration receivable by any member of the Group (excluding SunPower Malaysia) for any Disposal made by any member of the Group (excluding SunPower Malaysia) after deducting:

any reasonable expenses which are incurred by that member of the Group with respect to that Disposal to persons who are not members of the Group; and

any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance);

“Eligible Equipment Disposal Proceeds” means the Disposal Proceeds received by any member of the Group in respect of the Disposal of Eligible Equipment, provided that:

for the purposes of the definition of “Disposal” and “Disposal Proceeds”, in calculating Eligible Equipment Disposal Proceeds, such definitions shall include the disposal of Eligible Equipment in the ordinary course of business; and

Eligible Equipment Disposal Proceeds shall include (without limitation) proceeds received by any member of the Group by way of advance payment for, or the proceeds of factoring receivables in respect of, the Disposal of Eligible Equipment,

and in all cases to the extent such disposed Eligible Equipment was purchased using the proceeds of Utilisation of the Working Capital Facility; and

“Excluded Disposal Proceeds” means Disposal Proceeds which:

are applied by the relevant member of the Group in reinvestment in assets used in the operations of that member of the Group within:

eighteen (18) months of receipt of those Disposal Proceeds; or

twelve (12) months of the relevant member of the Group making a binding commitment to the Facility Agents (such commitment being given within twelve (12) months of receipt of the relevant Disposal Proceeds) to reinvest such Disposal Proceeds); or

when aggregated with all other Disposal Proceeds received or receivable in the same rolling 12 month period by all of the members of the Group do not exceed USD 25,000,000.

Mandatory prepayment – Insurance Proceeds

The Borrowers shall apply all Total Loss Insurance Proceeds (other than Excluded Insurance Proceeds) in prepayment of the outstanding Loans within five (5) Business Days of these proceeds ceasing to be Excluded Insurance Proceeds or at any earlier time when the Company determines that such proceeds are not Excluded Insurance Proceeds.

In this clause 7.8:

“Total Loss Insurance Proceeds” means all the proceeds received by a member of the Group (including the Chinese Joint Venture (subject to paragraph (B) below, but excluding SunPower Malaysia) in respect of claims for the total loss of one or more assets of that member of the Group or the Chinese Joint Venture (as applicable), made under contracts of insurance held and maintained by that member of the Group or the Chinese Joint Venture (as applicable) including:

in the case of any members of the Group which are not wholly owned by other members of the Group (“Company A”), the proportionate share of insurance proceeds received by another member of the Group in its capacity as shareholder of Company A; and

in the case of the Chinese Joint Venture, the proportionate share of insurance proceeds received by SunPower Manufacturing Corporation Limited in its capacity as shareholder of the Chinese Joint Venture; and

“Excluded Insurance Proceeds” means Total Loss Insurance Proceeds (other than Total Loss Insurance Proceeds received from the Chinese Joint Venture) which are reinvested or committed to be reinvested by the relevant member of the Group in the procurement of replacement assets substantially the same as those which were the subject of the total loss claim, such reinvestment to be completed within eighteen (18) months of the receipt of such Total Loss Insurance Proceeds.

Mandatory prepayment – Convertible Bonds

INTEREST AND INTEREST PERIODS

Subject to the provisions of this Agreement, each Borrower shall pay accrued interest on the Loans in accordance with the terms of the relevant Facility Agreement.

The Interest Period(s) in respect of a Loan shall be determined in accordance with the terms of the relevant Facility Agreement.

FEES

Commitment fee

Upfront fee

Intercreditor agency fee

Facility agency fee

Security agency fee

TAX GROSS-UP AND INDEMNITIES

Tax definitions

Tax gross-up

All payments to be made by an Obligor to any Finance Party under the Finance Documents shall be made free and clear of and without any Tax Deduction unless such Obligor is required to make a Tax Deduction, in which case the sum payable by such Obligor (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that such Finance Party receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.

The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the relevant Facility Agent(s) accordingly. Similarly, a Lender shall notify the relevant Facility Agent(s) on becoming so aware in respect of a payment payable to that Lender. If a Facility Agent receives such notification from a Lender it shall notify the Company and that Obligor.

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the relevant Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

Tax indemnity

Without prejudice to Clause 10.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Company shall, within three (3) Business Days of demand of the relevant Facility Agent, promptly indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause 10.3 shall not apply to:

any Tax imposed on and calculated by reference to the net income actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which such Finance Party is incorporated;

any Tax imposed on and calculated by reference to the net income of the Facility Office of such Finance Party actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which its Facility Office is located; or

a FATCA Deduction required to be made by a Party.

A Finance Party intending to make a claim under paragraph (a) above shall notify the relevant Facility Agent of the event giving rise to the claim, whereupon the relevant Facility Agent shall notify the Company thereof.

A Finance Party shall, on receiving a payment from an Obligor under this Clause 10.3, notify the relevant Facility Agent.

Tax credit

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

that Finance Party has obtained and utilised that Tax Credit,

Stamp taxes

pay all stamp duty, registration and other similar Taxes payable in respect of any Finance Document; and

within three (3) Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to any stamp duty, registration or other similar Tax paid or payable in respect of any Finance Document.

Indirect tax

All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

FATCA information

Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

If a Borrower is a US Tax Obligor or the relevant Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten (10) Business Days of:

where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

where a Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

where a Borrower is not a US Tax Obligor, the date of a request from the relevant Facility Agent,

supply to the relevant Facility Agent:

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

The relevant Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the relevant Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding

Each Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. No Facility Agent shall be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Facility Agent and the Facility Agent shall notify the other Finance Parties.

INCREASED COSTS

Increased Costs

Subject to Clause 11.3 (Exceptions) the Company shall, within three (3) Business Days of a demand by the relevant Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement; or

compliance with any law or regulation made after the date of this Agreement; or

the implementation or application of, or compliance with, Basel III, CRD IV or Solvency II or any law or regulation that implements or applies Basel III, CRD IV or Solvency II.

The terms “law” and “regulation” in this paragraph (a) shall include any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

In this Agreement:

“Increased Costs” means:

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);

an additional or increased cost; or

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to the undertaking, funding or performance by such Finance Party of any of its obligations under any Finance Document or any participation of such Finance Party in any Loan or Unpaid Sum;

“Basel III” means:

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”;

“CRD IV” means:

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and

“Solvency II” means Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance.

Increased Cost claims

A Finance Party (other than a Facility Agent) intending to make a claim pursuant to Clause 11.1 (Increased Costs) shall notify the relevant Facility Agent of the event giving rise to the claim, following which the relevant Facility Agent shall promptly notify the Company.

Each Finance Party (other than a Facility Agent) shall, as soon as practicable after a demand by the relevant Facility Agent, provide a certificate confirming the amount of its Increased Costs.

Exceptions

attributable to a Tax Deduction required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party;

compensated for by Clause 10.3 (Tax indemnity) (or would have been compensated for under Clause 10.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (a) of Clause 10.3 (Tax indemnity) applied);

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or

attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

MITIGATION BY THE LENDERS

Mitigation

Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 10 (Tax Gross-up and Indemnities) or Clause 11 (Increased Costs), including:

providing such information as the Company may reasonably request in order to permit the Company to determine its entitlement to claim any exemption or other relief (whether pursuant to a double taxation treaty or otherwise) from any obligation to make a Tax Deduction; and

in relation to any circumstances which arise following the date of this Agreement, transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

Limitation of liability

The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 12.1 (Mitigation).

A Finance Party is not obliged to take any steps under Clause 12.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

Conduct of business by the Finance Parties

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

OTHER INDEMNITIES

Currency indemnity

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

making or filing a claim or proof against that Obligor; or

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three (3) Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

the Data Site Documents or any other information produced or approved by any Obligor being or being alleged to be misleading and/or deceptive in any respect;

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement;

a failure by an Obligor to pay any amount due under a Finance Document on its due date or in the relevant currency, including any cost, loss or liability arising as a result of Clause 24 (Sharing among the Finance Parties);

funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.

Indemnity to the Facility Agents and Intercreditor Agent

any cost, loss or liability incurred by that Intercreditor Agent or Facility Agent (acting reasonably) as a result of:

investigating any event which it reasonably believes is a Default;

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Intercreditor Agent or the relevant Facility Agent (otherwise than by reason of the Intercreditor Agent’s or the relevant Facility Agent’s own gross negligence or wilful misconduct) in acting as Intercreditor Agent or Facility Agent under the Finance Documents.

Indemnity to the Security Agents

The Company shall within five (5) Business Days of demand indemnify each Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

acting or relying on any notice, request or instruction which it reasonably believes to be genuine and appropriately authorised;

the taking, holding, protection or enforcement of the Transaction Security;

the exercise of any of the rights, powers, discretions and remedies vested in that Security Agent and each Receiver and Delegate by the Finance Documents or by law;

any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

Each Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 13.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

The provisions of this Clause 13.4 shall survive in full force and effect notwithstanding the discharge of the Finance Documents, insofar as they relate to any act or omission of the relevant Security Agent (acting reasonably) prior to such discharge.

COSTS AND EXPENSES

Transaction expenses

this Agreement and any other documents referred to in this Agreement;

the Transaction Security; and

any other Finance Documents executed after the date of this Agreement.

Amendment costs

an Obligor requests an amendment, waiver or consent; or

an amendment is required pursuant to Clause 25.9 (Change of Currency); or

any amendment or waiver is contemplated or agreed pursuant to clause 8 (Replacement of Screen Rate) of the SP Philippines Facility Agreement, clause 8 (Replacement of Screen Rate) of the Maxeon Term Facility Agreement and/or clause 9.2 (Replacement of Screen Rate) of the Working Capital Facility Agreement,

Enforcement costs

Agent’s management time and additional remuneration

Any amount payable to the Intercreditor Agent, a Facility Agent or Security Agent under Clause 13.3 (Indemnity to the Facility Agents and the Intercreditor Agent) or Clause 13.4 (Indemnity to the Security Agents) and this Clause 14.4 shall include the cost of utilising its management time or other resources (where such time or resources relate to matters not included or envisaged under any relevant fee letter) and will be calculated on the basis of such reasonable daily or hourly rates as it may notify to the Company and the Finance Parties, and is in addition to any other fee paid or payable to it.

Without prejudice to sub-clause (a) above, in the event of:

an Event of Default;

the Intercreditor Agent, a Facility Agent or a Security Agent being requested by the Company or the Finance Parties appoint it to undertake duties which such Intercreditor Agent, Facility Agent or Security Agent and the Company agree to be of an exceptional nature or outside the scope of the normal duties of it under the Finance Documents; or

the Intercreditor Agent, a Facility Agent or a Security Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances,

the Company shall pay to the Intercreditor Agent, the relevant Facility Agent or the relevant Security Agent (as applicable) any additional remuneration that may be agreed between them or determined pursuant to sub-clause (c) below.

If the Intercreditor Agent, the relevant Facility Agent or the relevant Security Agent and the Company fail to agree upon the nature of the duties, or upon the additional remuneration referred to in sub-clause (b) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Intercreditor Agent, the relevant Facility Agent or the relevant Security Agent and approved by the Company or, failing approval, nominated (on the application of the Intercreditor Agent, the relevant Facility Agent or the relevant Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Company) and the determination of any investment bank shall be final and binding upon the Parties.

GUARANTEE AND INDEMNITY

Guarantee and indemnity

guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents (or, in the case of the HK Guarantor only, the punctual performance by each Borrower of its payment obligations under the Finance Documents);

undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 15 if the amount claimed had been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

Waiver of defences

any time, waiver or consent granted to, or composition with, any Obligor, Security Provider or other person;

the release of any other Obligor, Security Provider or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or any other person;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor, Security Provider or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, Security Provider or any other person;

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

any insolvency or similar proceedings; or

this Agreement or any other Finance Document not being executed by or binding upon any other party.

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 15.

Deferral of Guarantors’ rights

to be indemnified by an Obligor or Security Provider;

to claim any contribution from any other guarantor of or provider of security for any Obligor’s or Security Provider’s obligations under the Finance Documents;

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

to bring legal or other proceedings for an order requiring any Obligor or Security Provider to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 15.1 (Guarantee and indemnity);

to exercise any right of set-off against any Obligor or Security Provider; and/or

to claim or prove as a creditor of any Obligor or Security Provider in competition with any Finance Party.

Release of Guarantors’ right of contribution

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

Additional security

Guarantee limitations

The obligations and liabilities of the French Guarantor under the Finance Documents and in particular under this Clause 15 shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of article(s) L.242-6 and L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts and/or would infringe article L. 511-7 of the French Code monétaire et financier.

The obligations and liabilities of the French Guarantor under this Clause 15 for the obligations under the Finance Documents of any Borrower shall be limited, at any time to an amount equal to: (A) the payment obligations of such Borrower, but (B) not exceeding the aggregate of all amounts directly borrowed under the Finance Documents by such other Borrower to the extent directly or indirectly on-lent to the French Guarantor or its Subsidiaries under intercompany loan agreements and outstanding at the date a payment is to be made by the French Guarantor under this Clause 15; it being specified that any payment made by the French Guarantor under this Clause 15 in respect of the obligations of such Borrower shall reduce pro tanto the outstanding amount of the intercompany loans due by the French Guarantor under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Guarantor shall reduce pro tanto the amount payable under this Clause 15.

It is acknowledged that the French Guarantor is not acting jointly and severally with the other Guarantors and the French Guarantor shall therefore not be considered as “co-débiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this Clause 15.

For the purpose of paragraphs (b) and (c) above “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of article L.233-3 of the French Code de commerce.

Waivers by the Mexican Guarantor

Swiss Up-Stream and Cross-Stream Limitation and Withholding Tax

If and to the extent an Obligor incorporated under the laws of Switzerland (the “Swiss Obligor”) becomes liable under this Agreement or any other Finance Document for obligations of any other Obligor, other than obligations of one of its direct or indirect subsidiaries (i.e. obligations of the Swiss Obligor’s direct or indirect parent companies (up-stream liabilities) or sister companies (cross-stream liabilities) or respective obligations of the Swiss Obligor or of any other party securing obligations of the Swiss Obligor’s direct or indirect parent companies (up-stream liabilities) or sister companies (cross-stream liabilities)) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Obligor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss Obligor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law, which amount shall (i) be determined on the basis of an audited balance sheet of the Swiss Obligor, to the extent required by Swiss law at the relevant time, (ii) be confirmed by the auditors of the Swiss Obligor as distributable amount and (iii) be duly approved as distribution by a duly convened meeting of the shareholders or quotaholders of the Swiss Obligor); provided further that such limitation (as may apply from time to time or not) shall not (generally or definitively) affect the obligations of the Swiss Obligor under this Agreement in excess thereof, but merely postpone the performance date of those obligations until such times as performance is again permitted notwithstanding such limitation.

To the extent that the fulfilment of an obligation in relation to a Restricted Obligation are subject to Swiss withholding tax, the Swiss Obligor:

shall:

procure that the fulfilment of any of its obligations hereunder can be made without deduction of Swiss withholding tax by discharging the liability of such tax by notification pursuant to applicable law rather than payment of the tax;

if the notification procedure pursuant to sub-paragraph (A) above does not apply, deduct the Swiss withholding tax at such rate (1) as in force from time to time (being 35% on the date

notify the relevant Facility Agent that such notification or, as the case may be, deduction has been made, and provide such Facility Agent with evidence that such a notification of the Swiss tax administration has been made or, as the case may be, such Swiss withholding tax deducted has been paid to the Swiss Tax Administration;

shall procure that any person who is entitled to a full or partial refund of the Swiss withholding tax deducted pursuant to this paragraph (b):

request a refund of the Swiss withholding tax under applicable law as soon as possible; and

pay to the relevant Facility Agent upon receipt any amount so refunded to cover any outstanding part of the Restricted Obligation; and

to the extent such a deduction is made, shall not be obliged to gross-up in accordance with the Finance Documents in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force.

If and to the extent requested by the relevant Facility Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow such Facility Agent (and the Finance Party) to obtain a maximum benefit under this Agreement, the Swiss Obligor undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following:

the preparation of an up-to-date audited balance sheet of the Swiss Obligor;

the confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits;

approval by a shareholder / quotaholder(s)’ meeting of the Swiss Obligor of the resulting profit distribution;

to the extent permitted by applicable law, write up any of the assets of the Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets and provided that such write up would not have materially adverse tax consequences for the Swiss Obligor or any of its affiliates; and

all such other measures necessary or useful to allow the Swiss Obligor to make the payments and perform the obligations hereunder with a minimum of limitations.

REPRESENTATIONS

Status

Both it and each Security Provider is a corporation, duly incorporated, validly existing and in good standing under the law of its respective jurisdiction of incorporation.

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

Binding obligations

Non-conflict with other obligations

any law or regulation applicable to it;

its constitutional documents and (with effect from the date of accession of the HK Guarantor to this Agreement) the HK Guarantor JV Agreement; or

any agreement or instrument binding upon it or any of its assets, or constitute a default or termination event (however described) under any such agreement or instrument.

Power and authority

Validity and admissibility in evidence

to enable it and each Security Provider lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;

to make the Finance Documents to which it and each Security Provider is a party admissible in evidence in its jurisdiction of incorporation; and

for it and its Subsidiaries to carry on its business, and which are material,

Governing law and enforcement

The choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation and in the jurisdiction of incorporation of each Security Provider.

Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation and in the jurisdiction of incorporation of each Security Provider, provided that any statutory requirements for enforcement of such judgment under the laws of such Security Provider’s jurisdiction of incorporation are met.

Deduction of Tax

No filing or stamp taxes

any stamp duty payable in the Cayman Islands if any of the Finance Documents are executed in or brought to the Cayman Islands or produced before a court of the Cayman Islands;

the lodging of the Security Documents to which the Company is a party with the Accounting and Corporate Regulatory Authority in Singapore for registration within thirty (30) days after the date of creation of the charges constituted by such Security Documents;

any documentary stamp tax payable in the Philippines pursuant to the National Internal Revenue Code of the Philippines, as amended by the Tax Reform Acceleration and Inclusion Act of the Philippines; and

as contemplated by the Security Documents.

No default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.

No misleading information

Any factual information contained in the Data Site Documents was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

Any financial projections contained in the Data Site Documents have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.

Nothing has occurred or been omitted from the Data Site Documents and no information has been given or withheld that results in the information contained in the Data Site Documents being untrue or misleading in any material respect.

All written information (other than the Data Site Documents) supplied by any member of the Group was true, complete and accurate in all material respects as at the date it was given and was not misleading in any respect.

Financial statements

Its financial statements most recently supplied to the Facility Agents (which, at the date of this Agreement, are its Original Financial Statements) were prepared in accordance with applicable GAAP consistently applied save to the extent expressly disclosed in such financial statements.

Its financial statements most recently supplied to the Facility Agents (which, at the date of this Agreement, are its Original Financial Statements) give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition and operations (consolidated in the case of the Company) for the period to which they relate, save to the extent expressly disclosed in such financial statements.

There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company, or SunPower Philippines and its Subsidiaries, in the case of SunPower Philippines) since the date of the Original Financial Statements, except as has been disclosed by the Company or SunPower Corporation in any public press release or any filing made on the relevant stock exchange.

Pari passu ranking

No proceedings

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it.

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it.

Authorised signatures

Environmental compliance

Environmental Claims

Contaminated Land

Taxation

Each member of the Group has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties, where failure to do so would reasonably be expected to have a Material Adverse Effect.

No member of the Group is materially overdue in the filing of any Tax returns.

No claims are being or are reasonably likely to be asserted against any member of the Group with respect to Taxes.

Solvency

No corporate action, legal proceeding or other step described in Clause 20.7 (Insolvency proceedings) or creditors’ process described in Clause 20.8 (Creditors’ process) has been taken or, to its knowledge, threatened in relation to any member of the Group.

None of the circumstances described in Clause 20.6 (Insolvency) apply in respect of any member of the Group.

Anti-corruption law

In connection with this Agreement, the Facilities and the use of the proceeds of the Facilities, no member of the Group nor any of their Subsidiaries nor, to the knowledge of any member of the Group, its directors, officers, agents or representatives, have, for the purpose of gaining or maintaining unlawful or improper benefits for the Group, directly or indirectly:

violated applicable anti-corruption laws or made, undertaken, offered to make, promised to make or authorised the payment or giving of a prohibited payment;

used funds or other assets, or made any promise or undertaking in such regard, for the establishment or maintenance of a secret or unrecorded fund; or

made any false or fictitious entries in any books or records of any member of the Group relating to any prohibited payment.

Each member of the Group has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

Sanctions

No member of the Group nor any of their Subsidiaries or joint ventures, nor any of their respective directors or officers nor, to the knowledge of the Obligors, their employees or any persons acting on any of their behalf:

is a Restricted Party; or

has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority.

The representation in paragraph (a) shall be given by and apply to each Obligor for the benefit of each Finance Party, provided that no Affected Finance Party shall be entitled to the benefit of this representation when and to the extent that it is unenforceable under, or results in any violation of (i) the Blocking Regulation or (ii) any similar anti-boycott statute.

Security

Ranking of Security

Transaction Security

Legal and beneficial owner

Shares

Intellectual Property

It is not aware of any adverse circumstance relating to validity, subsistence or use of any of Intellectual Property relating to manufacturing technology which is required by the Group which could reasonably be expected to have a Material Adverse Effect.

All material Intellectual Property relating to manufacturing technology which is required by the Group will be owned or licensed by Maxeon Solar, Pte. Ltd. on and from the completion of Spin Off.

Land ownership

SPML Land is:

the legal and beneficial owner or leaseholder of the SPML Land Real Property set out in the Valuation Report; and

has good and marketable title to the SPML Land Real Property free from Security (other than those created by or pursuant to the SPML Land Security Documents) and restrictions and onerous covenants (other than those set out in the Valuation Report in relation to that property).

Except as disclosed in the Valuation Report relating to a property:

no breach of any law, regulation or covenant is outstanding which adversely affects or might reasonably be expected to adversely affect the value, saleability or use of that property;

there is no covenant, agreement, stipulation, reservation, condition, interest, right, easement or other matter whatsoever adversely affecting that property;

all facilities necessary for the enjoyment and use of that property (including those necessary for the carrying on of its business at that property) are enjoyed by that property;

none of the facilities referred to in paragraph (iii) above are enjoyed on terms:

entitling any person to terminate or curtail its use of that property; or

which conflict with or restrict its use of that property;

SPML Land has not received any notice of any adverse claim by any person in respect of the ownership of that property or any interest in it which might reasonably be expected to be determined in favour of that person, nor has any acknowledgement been given to any such person in respect of that property; and

that property is held by SPML Land free from any lease or licence (other than those entered into in accordance with this Agreement).

Group Structure

Each Obligor (other than the Company and the HK Guarantor) is a wholly-owned Subsidiary of the Company. The Company legally and beneficially owns 80% of the shares in the HK Guarantor.

Following the Spin Off, the shareholding of the Group as set out in the Post-Spin Off Group Structure Chart will be true, complete and accurate as at the date it is provided.

Financial Indebtedness

The consolidated Financial Indebtedness of the Group (including subordinated and unsubordinated shareholder loans advanced to the Group) was USD 147,000,000 on 28 June 2020.

In connection with the Convertible Bonds:

the physical delivery forward transaction entered into, is treated as equity on the balance sheet; and

the privately negotiated prepaid forward share purchase transaction entered into, is treated as an asset on the balance sheet,

in each case, in accordance with applicable GAAP.

Polysilicon Purchase Contract

Chinese Joint Venture

The Company holds an indirect minority shareholding of 20% in the Chinese Joint Venture and allows it to exercise 20% of the voting rights in the Chinese Joint Venture, and has the right to appoint two (2) board members under the constitutional documents of the Chinese Joint Venture.

Under the Chinese JV Supply Contract, the Group has an option to purchase up to two thirds (2/3) of the goods (including Eligible Equipment) produced by the Chinese Joint Venture.

The Company represents that to the actual knowledge of the Company (after making due and careful enquiry):

neither the Chinese Joint Venture nor any of its directors or officers is a Restricted Party;

it has not received notice of or is aware of any claim, action, suit, proceeding or investigation against the Chinese Joint Venture, its directors or officers with respect to Sanctions by any Sanctions Authority; and

neither the Chinese Joint Venture nor its directors or officers have, for the purpose of gaining or maintaining unlawful or improper benefits for the Chinese Joint Venture or any member of the Group, directly or indirectly:

violated applicable anti-corruption laws or made, undertaken, offered to make, promised to make or authorised the payment or giving of a prohibited payment;

used funds or other assets, or made any promise or undertaking in such regard, for the establishment or maintenance of a secret or unrecorded fund; or

made any false or fictitious entries in any books or records of the Chinese Joint Venture relating to any prohibited payment.

The representation in paragraph (c) above shall be given by the Company in respect of the Chinese Joint Venture for the benefit of each Finance Party provided that no Affected Finance Party shall be entitled to the benefit of this representation when and to the extent that it is unenforceable under, or results in any violation of (i) the Blocking Regulation or (ii) any similar anti-boycott statute.

Repetition

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:

the date of each Utilisation Request;

the first day of each Interest Period; and

in the case of an Additional Guarantor, the day on which that Additional Guarantor accedes to this Agreement under an Accession Letter.

The representation in Clause 16.32(c) shall be deemed to be made by the Company by reference to the facts and circumstances then existing on each date falling 12 Months after the date of this Agreement.

INFORMATION UNDERTAKINGS

Financial statements

as soon as the same become available, but in any event within 150 days after the end of each of its financial years:

its audited consolidated financial statements for that financial year; and

the audited standalone financial statements of SunPower Philippines for that financial year;

as soon as the same become available, but in any event within 120 days after the end of the first half of each of its financial years:

its unaudited consolidated financial statements for that financial half year; and

the unaudited standalone financial statements of SunPower Philippines for that financial half year; and

as soon as the same become available, but in any event within 90 days after the end of each financial quarter of each of its financial years the unaudited management statements of each Obligor for that financial quarter.

Compliance Certificate

The Company shall supply to each Facility Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 17.1 (Financial statements), a Compliance Certificate:

confirming the account balance in each DSRA;

confirming that no Event of Default has occurred and is continuing; and

setting out (in reasonable detail) computations as to compliance with Clause 18 (Financial Covenants) as at the date as at which those financial statements were drawn up.

Each Compliance Certificate delivered together with the audited annual financial statements delivered pursuant to paragraph (a)(i) of Clause 17.1 (Financial statements) shall be signed by the Company’s auditors.

Requirements as to financial statements

Each set of financial statements delivered by the Company pursuant to Clause 17.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view of (in the case of any such financial statements which are audited) or fairly representing (in the case of any such financial statements which are unaudited) its financial condition as at the date as at which those financial statements were drawn up.

The Company shall procure that each set of financial statements of an Obligor delivered pursuant to Clause 17.1 (Financial statements) is prepared using applicable GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agents that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agents:

a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor’s Original Financial Statements were prepared; and

sufficient information as may be reasonably required by each Facility Agent, to enable the Lenders to determine whether Clause 18 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor’s Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

Information: miscellaneous

all documents dispatched by an Obligor to its creditors generally at the same time as they are despatched;

all documents dispatched by the Company to its shareholders (or any class of them) generally at the same time as they are despatched;

promptly, any announcement, notice or other document relating specifically to the Company posted onto any electronic website maintained by any stock exchange on which shares in or other securities of the Company are listed or any electronic website required by any such stock exchange to be maintained by or on behalf of the Company;

promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;

promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any member of the Group, and which might have a Material Adverse Effect;

promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the relevant Facility Agent) may reasonably request;

promptly, notice of any change in authorised signatories of any Obligor signed by a director or company secretary of such Obligor accompanied by specimen signatures of any new authorised signatories;

promptly, notice of a change by any Obligor in the date of its financial year end or any change of the auditors of any Obligor;

within twelve months of the date of the Valuation Report and each date falling twelve months thereafter, a desktop valuation update in respect of all properties included in the Valuation Report (and any other real property acquired by SPML Land after the date of this Agreement);

at the same time financial statements are delivered pursuant to clause 17.1 (Financial statements) production capacity data in respect of the Maxeon 3 line for the period covered by such financial statements; and

promptly upon becoming aware of any facts and circumstances that at any time would result in the representations given in Clause 16.32(c) (Chinese Joint Venture) being incorrect (if such representations were deemed to be given or repeated at that time).

Notification of default

Each Obligor shall notify each Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

Promptly upon a request by a Facility Agent, the Company shall supply to that Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

Use of Websites

The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by posting the information onto an electronic website designated by the Company and the Intercreditor Agent (the “Designated Website”) if:

the Intercreditor Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

both the Company and the Intercreditor Agent are aware of the address of and any relevant password specifications for the Designated Website; and

the information is in a format previously agreed between the Company and the Intercreditor Agent.

If any Lender (a “Paper Form Lender”) does not agree to the delivery of information electronically then the Intercreditor Agent shall notify the Company accordingly and the Company shall supply the information to the Intercreditor Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Intercreditor Agent with at least one copy in paper form of any information required to be provided by it.

The Intercreditor Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Intercreditor Agent.

The Company shall promptly upon becoming aware of its occurrence notify the Agent if:

the Designated Website cannot be accessed due to technical failure;

the password specifications for the Designated Website change;

any new information which is required to be provided under this Agreement is posted onto the Designated Website;

any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Company notifies the Intercreditor Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Intercreditor Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

Any Website Lender may request, through the Intercreditor Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten (10) Business Days.

Direct electronic delivery by Obligors

“Know your customer” checks

Each Obligor shall promptly upon the request of any Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by that Facility Agent (for itself or on behalf of any Lender (including for any Lender on behalf of any prospective new Lender)) in order for that Facility Agent, such Lender or any prospective new Lender to conduct all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct.

Each Lender shall promptly upon the request of the relevant Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by that Facility Agent (for itself) in order for that Facility Agent to conduct all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct.

FINANCIAL COVENANTS

Definitions

Financial Condition

the ratio of Consolidated Total Net Debt to Consolidated Tangible Net Worth shall not exceed 0.5x;

the Consolidated Tangible Net Worth shall at all times be greater than USD 275,000,000;

the Consolidated Debt Service Coverage Ratio shall at all times be greater than 1.25x; and

the ratio of Consolidated Total Net Debt to Consolidated EBITDA shall not exceed:

3.5x for the Test Date falling on 30 September 2021;

3.0x for the Test Date falling on 31 December 2021;

2.5x for the Test Date falling on 30 June 2022; and

2.25x for each Test Date thereafter.

Financial testing