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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 8/13/10 Sunpower Corp 10-Q 7/04/10 46:15M Broadridge Fin’l So… Inc |
Document/Exhibit Description Pages Size 1: 10-Q Sunpower Corporation 10-Q 7-4-2010 HTML 1.50M 3: EX-10.10 Material Contract HTML 711K 4: EX-10.11 Material Contract HTML 218K 5: EX-10.12 Material Contract HTML 87K 6: EX-10.13 Material Contract HTML 822K 7: EX-10.14 Material Contract HTML 133K 8: EX-10.15 Material Contract HTML 568K 2: EX-10.9 Material Contract HTML 56K 9: EX-31.1 Certification -- §302 - SOA'02 HTML 22K 10: EX-31.2 Certification -- §302 - SOA'02 HTML 22K 11: EX-32.1 Certification -- §906 - SOA'02 HTML 18K 37: XML IDEA XML File -- Definitions and References XML 106K 42: XML IDEA XML File -- Filing Summary XML 57K 40: XML.R1 Condensed Consolidated Balance Sheets (Unaudited) XML 407K 41: XML.R2 Parenthetical Data To The Condensed Consolidated XML 206K Balance Sheets (Unaudited) 26: XML.R3 Condensed Consolidated Statements of Operations XML 515K (Unaudited) 31: XML.R4 Condensed Consolidated Statements of Cash Flows XML 599K (Unaudited) 35: XML.R5 the Company and Summary of Significant Accounting XML 128K Policies 34: XML.R6 Business Combinations XML 142K 45: XML.R7 Discontinued Operations XML 63K 22: XML.R8 Goodwill and Other Intangible Assets XML 140K 33: XML.R9 Balance Sheet Components XML 224K 20: XML.R10 Property, Plant and Equipment, Net XML 73K 19: XML.R11 Investments XML 228K 25: XML.R12 Advances to Suppliers XML 46K 39: XML.R13 Customer Advances XML 51K 27: XML.R14 Commitments and Contingencies XML 120K 28: XML.R15 Joint Ventures XML 77K 32: XML.R16 Debt and Credit Sources XML 334K 46: XML.R17 Comprehensive Income (Loss) XML 84K 24: XML.R18 Foreign Currency Derivatives XML 187K 18: XML.R19 Income Taxes XML 37K 30: XML.R20 Net Income (Loss) Per Share of Class A and Class B XML 176K Common Stock 38: XML.R21 Stock-Based Compensation XML 110K 23: XML.R22 Segment and Geographical Information XML 206K 36: XML.R23 Subsequent Events XML 37K 29: XML.R24 Document Information XML 41K 44: XML.R25 Entity Information XML 221K 43: EXCEL IDEA Workbook of Financial Reports (.xls) XLS 1.78M 12: EX-101.INS XBRL Instance -- spwra-20100704 XML 2.09M 14: EX-101.CAL XBRL Calculations -- spwra-20100704_cal XML 177K 17: EX-101.DEF XBRL Definitions -- spwra-20100704_def XML 60K 15: EX-101.LAB XBRL Labels -- spwra-20100704_lab XML 578K 16: EX-101.PRE XBRL Presentations -- spwra-20100704_pre XML 331K 13: EX-101.SCH XBRL Schema -- spwra-20100704 XSD 59K 21: ZIP XBRL Zipped Folder -- 0001140361-10-033428-xbrl Zip 132K
CONFIDENTIAL TREATMENT REQUESTED
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CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
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Part
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Page
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Part 1 General Agreement
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1
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Part 2 Loan Agreement
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6
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Part 3 Mortgage Agreement
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78
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“Authority”
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any national, supranational, regional or local government, or governmental, administrative, fiscal,, judicial or government-owned body, department, commission, authority, tribunal, agency or entity, or central bank (or any Person whether or not government-owned and howsoever constituted or called, that exercises the functions of the central bank);
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“Business Day”
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a day when banks are open for business in New York, New York or, solely for the purpose of determining any Interest Rate, London, England;
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“Dollars” and “$”
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the lawful currency of the United States of America;
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“Lien”
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any mortgage, pledge, charge, assignment, hypothecation, security interest, title retention, preferential right, trust arrangement, right of set-off, counterclaim or banker’s lien, privilege or priority of any kind having the effect of security, any designation of loss payees or beneficiaries or any similar arrangement under or with respect to any insurance policy or any preference of one creditor over another arising by operation of law;
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“Loan Agreement”
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the agreement entitled “Loan Agreement” and which constitutes Part 2 of the Mortgage Loan Agreement, entered into by and between the Borrower and IFC;
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“Mortgage Agreement”
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the agreement entitled “Mortgage Agreement” and which constitutes Part 3 of the Mortgage Loan Agreement, entered into by and among the Borrower, SPML Land and IFC, and all Mortgage Supplements and any and all documents arising from the Mortgage Agreement, including any amendments or supplements to the foregoing;
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“Person”
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any natural person, corporation, company, partnership, firm, voluntary association, joint venture, trust, unincorporated organization, Authority or any other entity whether acting in an individual, fiduciary or other capacity;
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“Philippines”
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the Republic of the Philippines;
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“Transaction Documents”
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(a) the Mortgage Loan Agreement;
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(b) the Guarantee Agreement;
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(c) the Share Retention Agreement;
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(d) the Subordination Agreement;
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(e) the Security Documents;
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(f) the Project Documents; and
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(g) any other agreement or document which IFC and the Borrower agree is a “Transaction Document”;
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“Taxes”
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any present or future taxes, withholding obligations, duties and other charges of whatever nature levied by any Authority; and
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“U.S.” or “United States”
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the United States of America.
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INTERNATIONAL FINANCE CORPORATION
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By:
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/s/ Jesse O. Ang
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Name:
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Title:
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Resident Representative
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SUNPOWER PHILIPPINES MANUFACTURING LTD.
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By:
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Name:
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Title:
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Attorney-in-Fact
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SPML LAND, INC.
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By:
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Name:
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Title:
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President
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Article/
Section
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Item
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Page No.
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ARTICLE I
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1
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General
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1
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Section 1.01.
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General
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1
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ARTICLE II
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1
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The Loan
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1
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Section 2.01.
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The Loan
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1
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Section 2.02.
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Disbursement Procedure
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1
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Section 2.03.
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Interest
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2
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Section 2.04.
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Default Rate Interest
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4
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Section 2.05.
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Repayment
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4
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Section 2.06.
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Prepayment
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4
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Section 2.07.
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Fees
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4
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Section 2.08.
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Currency and Place of Payment
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5
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Section 2.09.
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Allocation of Partial Payments
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5
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Section 2.10.
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Increased Costs
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5
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Section 2.11.
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Unwinding Costs
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5
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Section 2.12.
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Taxes
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6
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Section 2.13.
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Expenses
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6
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Section 2.14.
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Business Day Adjustment
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7
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Section 2.15.
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Illegality of Participation
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7
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Section 2.16.
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Conditions of Disbursement
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7
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ARTICLE III
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11
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Representations and Warranties
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11
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Section 3.01.
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Representations and Warranties
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11
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Section 3.02.
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IFC Reliance
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14
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ARTICLE IV
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14
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Covenants
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14
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Section 4.01.
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Affirmative Covenants
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14
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Section 4.02.
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Negative Covenants
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16
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Section 4.03.
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Reporting Requirements
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19
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ARTICLE V
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21
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Events of Default
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21
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Section 5.01.
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Acceleration After Default
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21
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Section 5.02.
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Events of Default
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21
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Section 5.03.
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Bankruptcy
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23
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ARTICLE VI
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23
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Miscellaneous
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23
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Section 6.01.
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Saving of Rights
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23
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Section 6.02.
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Notices
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24
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Section 6.03.
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English Language
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24
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Section 6.04.
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Applicable Law and Jurisdiction
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25
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Section 6.05.
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Disclosure of Information
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26
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Section 6.06.
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Financial Calculations
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26
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Section 6.07.
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Interpretation
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26
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Section 6.08.
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Indemnification; No Consequential Damages
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27
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Section 6.09.
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Successors and Assignees
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27
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Section 6.10.
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Amendments, Waivers and Consents
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27
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Section 6.11.
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Counterparts
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27
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ANNEX A
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30
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DEFINITIONS
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30
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ANNEX B
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44
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SANCTIONABLE PRACTICES
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44
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ANNEX C
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47
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AUTHORIZATIONS
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47
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ANNEX D
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49
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INSURANCE REQUIREMENTS
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49
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ANNEX E
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50
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FORM OF ANNUAL MONITORING REPORT
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50
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ANNEX F
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62
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PROHIBITED ACTIVITIES
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62
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ANNEX G
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64
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EXISTING LIENS
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64
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ANNEX H
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65
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ACTION PLAN
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65
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ANNEX I
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65
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SPML LAND ACTION PLAN
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65
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SCHEDULE 1
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68
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FORM OF CERTIFICATE OF INCUMBENCY AND AUTHORITY
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68
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SCHEDULE 2
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70
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FORM OF REQUEST FOR DISBURSEMENT
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70
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SCHEDULE 3
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72
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FORM OF DISBURSEMENT RECEIPT
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72
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SCHEDULE 4
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73
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FORM OF LETTER TO BORROWER’S AUDITORS
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73
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SCHEDULE 5
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74
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INFORMATION TO BE INCLUDED IN ANNUAL REVIEW OF OPERATIONS
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74
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SCHEDULE 6
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75
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FORM OF SERVICE OF PROCESS LETTER
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75
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(ii)
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LIBOR on the Interest Determination Date for that Interest Period for six (6) months (or, in the case of the first Interest Period for any Disbursement, for one (1) month, two (2) months, three (3) months or six (6) months, whichever period is closest to the duration of the relevant Interest Period (or, if two periods are equally close, the longer one)) rounded upward to the nearest three decimal places.
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(i)
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on the second Business Day before the beginning of the relevant Interest Period by calculating the arithmetic mean (rounded upward to the nearest three decimal places) of the offered rates advised to IFC on or around 11:00 a.m., London time, for deposits in the Loan Currency and otherwise in accordance with Section 2.03 (c) (ii), by any four (4) major banks active in the Loan Currency in the London interbank market, selected by IFC; provided that if less than four quotations are received, IFC may rely on the quotations so received if not less than two (2); or
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(ii)
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if less than two (2) quotations are received from the banks in London in accordance with subsection (i) above, on the first day of the relevant Interest Period, by calculating the arithmetic mean (rounded upward to the nearest three decimal places) of the offered rates advised to IFC on or around 11:00 a.m., New York time, for loans in the Loan Currency and otherwise in accordance with Section 2.03 (c) (ii), by a major bank or banks in New York, New York selected by IFC.
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(ii)
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either (A) the rate which expresses as a percentage rate per annum the cost to IFC (or the relevant Participant as notified to IFC as soon as practicable and in any event not later than the close of business on the first day of the relevant Interest Period) of funding the Loan or such Participation (as applicable) from whatever source it may reasonably select or (B) at the option of IFC (or any such Participant, as applicable), LIBOR for the relevant period as determined in accordance with Section 2.03 (c) (ii) above.
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(f)
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(i)
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If a Market Disruption Event occurs in relation to all or any part of the Loan and the Borrower so requests, within 5 Business Days of the notification by IFC pursuant to Section 2.03 (e), IFC and the Borrower shall enter into good faith negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest applicable to the Loan, or the relevant portion thereof.
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(i)
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failing to borrow in accordance with a request for Disbursement made pursuant to Section 2.02 (Disbursement Procedure);
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(ii)
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failing to prepay in accordance with a notice of prepayment made pursuant to Section 2.06 (Prepayment);
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(iv)
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after acceleration of the Loan, paying all or any portion of the Loan on a date other than an Interest Payment Date;
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(i)
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all Transaction Documents, each in form and substance satisfactory to IFC, have been entered into by all parties to them and have become (or, as the case may be, remain) unconditional and fully effective in accordance with their respective terms, and IFC has received a copy of each of those agreements to which it is not a party;
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(ii)
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the Borrower has obtained, and provided to IFC copies of all Authorizations listed in Annex C, and such other Authorizations
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(iii)
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IFC has received legal opinions, each in form and substance satisfactory to it, from the Borrower’s and Guarantor’s counsel in the U.S., IFC’s counsel in the Philippines, counsel in the Cayman Islands acceptable to IFC and, if requested by IFC, Borrower’s counsel in the Philippines and IFC’s counsel in the U.S., covering such matters relating to the transactions contemplated by the Transaction Documents as IFC may reasonably request;
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(iv)
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the Borrower’s and each other Loan Party’s organizational documents are in form and substance satisfactory to IFC;
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(v)
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IFC has received the fees which Section 2.07 (Fees) requires to be paid before the date of the first Disbursement and all other amounts then due under this Agreement including but not limited to, reimbursement of all invoiced fees and expenses of IFC’s counsel, if IFC so requires;
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(vi)
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IFC has received from the Borrower, and only with respect to clause (A) below, from each other Loan Party, (A) a Certificate of Incumbency and Authority; and (B) a copy of a letter in the form attached as Schedule 4, authorizing its auditors to communicate directly with IFC and provide any information regarding the financial condition of the Borrower as IFC may from time to time request;
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(vii)
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the Borrower has delivered to IFC evidence, satisfactory to IFC, of the appointment of an agent for service of process for the Borrower and the Guarantor, each in the form of Schedule 6;
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(viii)
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the Security has been duly created, perfected and registered or delivered, as the case may be;
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(ix)
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IFC has received copies of all insurance policies required to be obtained pursuant to Section 4.01 (m) (Affirmative Covenants) and Annex D, and a certification of the Borrower’s insurers or insurance agents confirming that such policies are in full force and effect and all premiums then due and payable under those policies have been paid;
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(x)
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the Borrower and the Guarantor have agreed and documented the conversion of the Borrower’s outstanding inter-company accounts
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(xi)
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(A) the Borrower has delivered to IFC the S&EA and the Action Plan, each in form and substance acceptable to IFC, and (B) the Borrower and IFC have agreed on the form of Annual Monitoring Report;
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(xii)
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the Borrower has initiated a review of the (A) solid and hazardous materials and waste management practices (including training, handling, storage and emergency procedures) at its Operations, and (B) workplace air quality against relevant standards such as those established by the Occupational Safety and Health Act of 1970 (as amended) of the United States of America for exposure to industrial chemicals and vapor, by a qualified professional acceptable to IFC;
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(xiii)
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the Borrower has retained a consultant acceptable to IFC who has either established alternate discharge standards or confirmed the applicability of existing regulatory standards for (A) emissions to air and (B) discharge to surface water, based on assimilative capacity of ambient environment, with the terms of reference for the scope of work to be established in consultation with IFC;
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(xiv)
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IFC has received the audited 2009 financial statements for each of the Borrower and the Guarantor (or, if more recent financial statements of the Borrower or the Guarantor are available, such more recent financial statements), in each case, restated (if so required) following completion by the Guarantor of its investigation into its accounting entries and financial statements, which shall be in form and substance satisfactory to IFC;
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(xv)
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the Borrower has implemented accounting, management information and cost control systems in a manner satisfactory to IFC, and as required by and consistent with the Securities Laws;
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(xvi)
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the Borrower has established the Debt Service Reserve Account and provided IFC evidence satisfactory to IFC that the amount on deposit in the Debt Service Reserve Account is not less than the aggregate principal and interest due or expected to become due to IFC under this Agreement during the 6-month period commencing on the date of such Disbursement;
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(xvii)
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the Borrower has delivered to IFC a copy of a completed environmental and social impact assessment for its Operations, as approved by all relevant Authorities;
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(xviii)
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IFC has received a legal opinion from legal counsel acceptable to IFC and in form and substance satisfactory to IFC, with respect to the Debt Service Reserve Account Agreement; and
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(xix)
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IFC has received a duly executed amendment extending the term of that certain lease agreement between SPML Land, as lessor, and SPML, as lessee, in respect of the land and building located in Sta. Anastacia, Sto. Tomas, Batangas, Philippines.
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(A)
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are, at the date of the relevant request, needed by the Borrower in connection with its capital expenditures and/or working capital requirements in the Philippines, or will be needed for such purpose within three (3) months of that date; and
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(B)
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are not in reimbursement of, or to be used for, expenditures in the territories of any country that is not a member of the World Bank or for goods produced in or services supplied from any such country;
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(iii)
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since the date of this Agreement nothing has occurred which has or could reasonably be expected to have a Material Adverse Effect;
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(B)
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any provision contained in any document to which the Borrower is a party (including this Agreement) or by which the Borrower is bound; or
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(C)
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any law, rule, regulation, Authorization or agreement or other document binding on the Borrower directly or indirectly limiting or otherwise restricting the Borrower’s borrowing power or authority or its ability to borrow;
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(v)
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IFC has received the request for disbursement referred to in Section 2.02 (Disbursement Procedure) and the Borrower’s
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(vi)
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the Borrower has provided IFC evidence satisfactory to IFC that the amount on deposit in the Debt Service Reserve Account is not less than the aggregate principal and interest due or expected to become due to IFC under this Agreement during the 6-month period commencing on the date of such Disbursement, as notified by IFC to the Borrower;
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(vii)
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the representations and warranties made in Article III of this Agreement and in the other Transaction Documents are true and correct in all material respects on and as of the date of that Disbursement with the same effect as if those representations and warranties had been made on and as of the date of that Disbursement;
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(viii)
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IFC has received evidence satisfactory to IFC that, prior to such Disbursement, the Current Ratio of the Borrower (which, for the purpose of calculating the Current Ratio in this clause (viii), shall exclude (A) any intercompany payables and receivables between the Borrower and other Subsidiaries of the Guarantor and (B) and indebtedness under the Subordinated Promissory Note); is not less than 1.1 and, after giving effect to such Disbursement, the Prospective Debt Service Coverage Ratio of the Borrower would not be less than 1.5;
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(ix)
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the Borrower has implemented the S&E Management System diligently and in accordance with the timetable described in the Action Plan; and
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(x)
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IFC has received all amounts then due under this Agreement, including but not limited to all invoiced fees and expenses of IFC’s counsel.
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(i)
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any Tax or other Lien arising by operation of law while the obligation underlying that Lien is not yet due or, if due, is being contested in good faith by appropriate proceedings and so long as the Borrower has set aside adequate cash reserves sufficient to promptly pay in full any amounts that the Borrower may be ordered to pay on final determination of any such proceedings;
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(ii)
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Liens in existence on the date hereof which are listed, and the property subject thereto described, in Annex G, without giving effect to any extension or renewal thereof; and
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(iii)
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Liens on assets other than assets covered by the Security to secure Financial Debt permitted under Section 4.02 (c) (ii);
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(ii)
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the Borrower may make loans and advances to its officers and employees in the ordinary course of business;
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(iii)
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the Borrower may make advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors, so long as such expenses were incurred in the ordinary course of business of the Borrower; and
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(iv)
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the Borrower may make loans and advances to the Guarantor or any wholly owned Subsidiary of the Guarantor;
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(A)
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any Financial Debt (other than the Loan) described in clause (i), (ii) or (vi) of the definition of “Financial Debt”, and any Financial Debt described in clause (viii) or (xii) of such definition which secures or guarantees or indemnifies any Financial Debt described in clause (i), (ii) or (vi) of such definition;
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(B)
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any Financial Debt (other than the Loan) described in clause (v) of the definition of “Financial Debt”, and any Financial Debt described in clause (viii) or (xii) of such definition which secures or guarantees or indemnifies any Financial Debt described in clause (v) of such definition, in an amount, individually or in the aggregate for all such non-payment and/or Financial Debt, in excess of five million Dollars ($5,000,000); or
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(C)
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any other Financial Debt (other than the Loan), in an amount, individually or in the aggregate for all such non-payment and/or Financial Debt, in excess of ten million Dollars ($10,000,000);
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SUNPOWER PHILIPPINES MANUFACTURING LTD.
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By:
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Name:
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Title:
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Attorney-in-Fact
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INTERNATIONAL FINANCE CORPORATION
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By:
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/s/Jesse O. Ang
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Name:
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Title:
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Resident Representative
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Name
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Community Tax Certificate
No. & Passport No.
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Issued at/on
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SunPower Philippines
Manufacturing Ltd.
represented by: Gregory D. Reichow
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SPML Land, Inc.
represented by:
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International Finance Corporation
represented by:
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“Accounting Standards”
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(i) International Financial Reporting Standards (IFRS) promulgated by the International Accounting Standards Board (“IASB”) (which include standards and interpretations approved by the IASB and International Accounting Standards issued under previous constitutions), together with its pronouncements thereon from time to time, and applied on a consistent basis, (ii) generally accepted accounting principles in the United States applied on a consistent basis, as applicable or (iii) Philippines Financial Reporting Standards, applied on a consistent basis;
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“Action Plan”
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the plan or plans developed by the Borrower, a copy of which is attached hereto as Annex H setting out specific social and environmental measures to be undertaken by the Borrower and its Subsidiaries to enable their respective Operations to comply with the Performance Standards, as such Action Plan may be amended or supplemented from time to time with IFC’s consent;
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“Affiliate”
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(i) First Philec and (ii) any Person directly or indirectly controlling, controlled by or under common control with, the Borrower (for purposes of this definition, “control” means the power to direct the management or policies of a Person, directly or indirectly, whether through the ownership of shares or other securities, by contract or otherwise, provided that the direct or indirect ownership of twenty per cent (20%) or more of the voting share capital of a Person is deemed to constitute control of that Person, and “controlling” and “controlled” have corresponding meanings);
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“Annual Monitoring Report”
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the annual monitoring report substantially in the form attached as Annex E hereto setting out the specific social, environmental and developmental impact information to be provided by the Borrower in respect of its and its Subsidiaries’ Operations as such form of Annual Monitoring Report may be amended or supplemented from time to time with IFC’s consent;
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“Applicable S&E Law”
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all applicable statutes, laws, ordinances, rules and regulations of the Cayman Islands and the Philippines, including licenses, permits or other governmental Authorizations setting standards concerning environmental, social, labor, health and safety or security risks of the type contemplated by the Performance Standards or imposing liability for the breach thereof;
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“Authorization”
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any license or approval (howsoever evidenced), registration, filing or exemption from, by or with any Authority, and all corporate, creditors’ and shareholders’ approvals or consents;
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“Authorized Representative”
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any natural person who is duly authorized by the Borrower to act on its behalf for the purposes specified in, and whose name and a specimen of whose signature appear on, the Certificate of Incumbency and Authority most recently delivered by the Borrower to IFC;
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“Calculation Period”
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for any calculation, a period of four consecutive quarters most recently ended prior to the event requiring the calculation for which financial statements should have been delivered to IFC pursuant to the terms and conditions hereof;
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“CAO”
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Compliance Advisor Ombudsman, the independent accountability mechanism for IFC that impartially responds to environmental and social concerns of affected communities and aims to enhance outcomes;
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“Certificate of Incumbency and Authority”
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a certificate provided to IFC by the Borrower in the form of Schedule 1;
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“Coercive Practice”
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the impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of the party to influence improperly the actions of a party;
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“Collusive Practice”
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an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party;
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“Consolidated” or
|
with respect to any Person (with respect to any financial
|
“Consolidated Basis” | statements to be provided, or any financial calculation to be made, under or for the purposes of this Agreement and any other Transaction Document) the method referred to in Section 6.06 (c) (Financial Calculations); and the entities whose accounts are to be consolidated with the accounts of such Person are all the Subsidiaries of such Person; | |
“Corrupt Practice”
|
the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party;
|
|
“Current Assets”
|
with respect to any Person, the aggregate of such Person’s cash, inventories, investments classified as “held for trading”, investments classified as “available for sale”, trade and other receivables realizable within one year, and prepaid expenses which are to be charged to income within one year;
|
|
“Current Liabilities”
|
with respect to any Person, the aggregate of all Liabilities of such Person falling due on demand or within one year (including the portion of Long-term Debt falling due within one year);
|
|
“Current Ratio”
|
with respect to any Person, the result obtained by dividing Current Assets (less prepaid expenses) by Current Liabilities, in each case, of such Person;
|
|
“Debt Service Reserve Account”
|
a debt service reserve cash account maintained by the Borrower with Wells Fargo Bank, National Association;
|
|
“Debt Service Reserve Account Agreement”
|
the agreement entitled “Debt Service Reserve Account Agreement” entered into or to be entered into among the Borrower, IFC and Wells Fargo Bank, National Association;
|
|
“Derivative Transaction”
|
||
“Disbursement”
|
any disbursement of the Loan;
|
|
“Event of Default”
|
any one of the events specified in Section 5.02 (Events of Default);
|
|
“Financial Debt”
|
of any Person, means any indebtedness of such Person for or in respect of:
|
|
(i) borrowed money;
|
||
(ii) the outstanding principal amount of any bonds,
|
debentures, notes, loan stock, commercial paper, acceptance credits, bills or promissory notes drawn, accepted, endorsed or issued by such Person;
|
||
(iii) the deferred purchase price of assets or services (except trade accounts incurred and payable in the ordinary course of business to trade creditors within one hundred eighty (180) days of the date they are incurred and which are not overdue);
|
||
(iv) non-contingent obligations of such Person to reimburse any other person for amounts payable by that person under a letter of credit or similar instrument (excluding any letter of credit or similar instrument issued for the account of such Person with respect to trade accounts incurred and payable in the ordinary course of business to trade creditors within ninety (90) days of the date they are incurred and which are not overdue);
|
||
(v) the amount of any obligation in respect of any Financial Lease;
|
||
(vi) amounts raised under any other transaction having the financial effect of a borrowing and which would be classified as a borrowing (and not as an off-balance sheet financing) under the Accounting Standards;
|
||
(vii) the amount of such Person’s obligations under derivative transactions entered into in connection with the protection against or benefit from fluctuation in any rate or price (but only the net amount owing by such Person after marking the relevant derivative transactions to market);
|
||
(viii) all indebtedness of the types described in the foregoing items secured by a Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person;
|
||
(ix) all obligations of such Person to pay a specified purchase price for goods and services, whether or not delivered or accepted (i.e., take or pay or similar obligations);
|
||
(x) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, any liability of such Person under any
|
sale and leaseback transactions that do not create a liability on the balance sheet of such Person, any obligation under a “synthetic lease” or any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person;
|
(xi) any premium payable on a redemption or replacement of any of the foregoing items; and
|
||
(xii) the amount of any obligation in respect of any guarantee or indemnity for any of the foregoing items incurred by any other Person;
|
||
“Financial Lease”
|
any lease or hire purchase contract which would, under the Accounting Standards, be treated as a finance or capital lease;
|
|
“Financial Year”
|
with respect to the Borrower or the Guarantor, the 52- or 53- week period commencing each year on the first Monday and ending on the following Sunday closest to December 31 or such other period as the Borrower or the Guarantor (as applicable) from time to time designates as its accounting year;
|
|
“First Philec”
|
First Philec Solar Corporation, a company organized under the laws of the Philippines;
|
|
“Fraudulent Practice”
|
any action or omission, including misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain a financial benefit or to avoid an obligation;
|
|
“Guarantee Agreement”
|
the agreement entitled “Guarantee Agreement” entered or to be entered into between the Guarantor and IFC;
|
|
“Guarantor”
|
SunPower Corporation, a corporation organized under the laws of the State of Delaware;
|
|
“Increased Costs”
|
the amount certified in an Increased Costs Certificate to be the net incremental costs of, or reduction in return to, IFC, or any Participant in connection with the making or maintaining of the Loan or its Participation that result from:
|
|
(i) any change in any applicable law or regulation or directive (whether or not having force of law) or in its interpretation or application by any Authority charged
|
with its administration; or | ||
(ii) compliance with any request from, or requirement of, any central bank or other monetary or other Authority;
|
||
which, in either case, after the date of this Agreement:
|
||
(A) imposes, modifies or makes applicable any reserve, special deposit or similar requirements against assets held by, or deposits with or for the account of, or loans made by, IFC or that Participant;
|
||
(B) imposes a cost on IFC as a result of IFC having made the Loan or on that Participant as a result of that Participant having acquired its Participation or reduces the rate of return on the overall capital of IFC or that Participant that it would have achieved, had IFC not made the Loan or that Participant not acquired its Participation;
|
||
(C) changes the basis of taxation on payments received by IFC in respect of the Loan or by that Participant with respect to its Participation (otherwise than by a change in taxation of the overall net income of IFC or that Participant imposed by the jurisdiction of its incorporation or in which it books its Participation or in any political subdivision of any such jurisdiction); or
|
||
(D) imposes on IFC or on that Participant any other condition regarding the making or maintaining of the Loan or that Participant’s Participation in the Loan but excluding any incremental costs of making or maintaining a Participation that are a direct result of that Participant having its principal office in the Philippines or having or maintaining a permanent office or establishment in the Philippines, if and to the extent that permanent office or establishment acquires that Participation;
|
||
“Increased Costs Certificate”
|
a certificate provided from time to time by IFC (based on a certificate to IFC from any Participant) certifying:
|
(i) the circumstances giving rise to the Increased Costs;
|
||
(ii) that the costs of IFC or, as the case may be, the Participant, have increased or the rate of return of either of them has been reduced;
|
||
(iii) that, IFC or, as the case may be, the Participant has, in its opinion, exercised reasonable efforts to minimize or eliminate the relevant increase or reduction, and
|
||
(iv) the amount of Increased Costs;
|
||
“Interest Determination Date”
|
except as otherwise provided in Section 2.03 (d) (ii) (Interest), the second Business Day before the beginning of each Interest Period;
|
|
“Interest Payment Date”
|
January 15 and July 15 in each year;
|
|
“Interest Period”
|
each period of six (6) months in each case beginning on an Interest Payment Date and ending on the day immediately before the next following Interest Payment Date, except in the case of the first period applicable to each Disbursement when it means the period beginning on the date on which that Disbursement is made and ending on the day immediately before the next following Interest Payment Date;
|
|
“Interest Rate”
|
for any Interest Period, the rate at which interest is payable on the Loan (or any portion thereof) during that Interest Period, determined in accordance with Section 2.03 (Interest);
|
|
“Liabilities”
|
of any Person, means the aggregate of all obligations of such Person to pay or repay money, including:
|
|
(i) Financial Debt;
|
||
(ii) the amount of all liabilities of such Person (actual or contingent) under any conditional sale or a transfer with recourse or obligation to repurchase, including by way of discount or factoring of book debts or receivables;
|
||
(iii) Taxes (including deferred taxes);
|
||
(iv) trade accounts incurred and payable in the ordinary course of business to trade creditors within one hundred eighty (180) days of the date they are incurred and which are not overdue (including letters of credit
|
or similar instruments issued for the account of such Person with respect to such trade accounts); | ||
(v) accrued expenses, including wages and other amounts due to employees and other services providers;
|
||
(vi) the amount of all liabilities of such Person howsoever arising to redeem any of its shares; and
|
||
(vii) to the extent (if any) not included in the definition of Financial Debt, the amount of all liabilities of any person to the extent such Person guarantees them or otherwise obligates itself to pay them;
|
||
“LIBOR”
|
the British Bankers’ Association (“BBA”) interbank offered rates for deposits in the Loan Currency which appear on the relevant page of the Reuters Service (currently page LIBOR01) or, if not available, on the relevant pages of any other service (such as Bloomberg Financial Markets Service) that displays such BBA rates; provided that if BBA for any reason ceases (whether permanently or temporarily) to publish interbank offered rates for deposits in the Loan Currency, “LIBOR” shall mean the rate determined pursuant to Section 2.03 (d) (Interest);
|
|
“Loan”
|
has the meaning set out in Section 2.01 (The Loan);
|
|
“Loan Party”
|
the Borrower, the Guarantor or SPML Land;
|
|
“Loan Currency”
|
Dollars;
|
|
“Long-term Debt”
|
Financial Debt whose final maturity falls due more than one year after the date it is incurred (including the current maturities thereof);
|
|
“Market Disruption Event”
|
before the close of business in London on the Interest Determination Date for the relevant Interest Period, the cost to IFC or Participants whose Participations in the Loan represent in the aggregate 30% or more of the outstanding principal amount of the Loan (as notified to IFC by such Participants), of funding the Loan or such Participations (as applicable) would be in excess of LIBOR;
|
|
“Material Adverse Effect”
|
with respect to any Loan Party (but in the case of SPML Land, only in respect of clauses (i), (iv) (v) and (vi) below), a material adverse effect on:
|
(i) such Person, its assets or properties;
|
||
(ii) such Person’s business prospects or financial condition;
|
||
(iii) the carrying on of such Person’s business or operations;
|
||
(iv) the ability of such Person to comply with its obligations under this Agreement, or under any other Transaction Document or Project Document to which it is a party;
|
||
(v) the rights, interests or remedies of IFC under or in connection with any of the Transaction Documents; or
|
||
(vi) the Security or IFC’s Lien on the Security or the priority of such Lien;
|
||
“NAPOCOR”
|
National Power Corporation, a government owned corporation, created by virtue of Republic Act No. 6395 of the Philippines;
|
|
“Net Income”
|
for any Financial Year, the excess (if any) of gross income over total expenses (provided that income taxes shall be treated as part of total expenses) appearing in the audited financial statements for such Financial Year;
|
|
“Non-Cash Items”
|
for any Financial Year, the net aggregate amount (which may be a positive or negative number) of all non-cash “income” (as a negative item) and non-cash “expense” (as a positive item) items which (under accrual accounting) were added or subtracted in calculating Net Income during that Financial Year; “Non-Cash Items” including equity earnings in Subsidiaries, asset revaluations, depreciation, amortization, deferred taxes and provisions for severance pay of staff and workers;
|
|
“Obstructive Practice”
|
(i) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making of false statements to investigators, in order to materially impede a World Bank Group investigation into allegations of a Corrupt Practice, Fraudulent Practice, Coercive Practice or Collusive Practice, and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or (ii) acts intended to materially impede the exercise of IFC’s access to contractually required information
|
in connection with a World Bank Group investigation into allegations of a Corrupt Practice, Fraudulent Practice, Coercive Practice or Collusive Practice; | ||
“Operations”
|
the operations, activities and facilities of any Person and its Subsidiaries (including the design, construction, operation, maintenance, management and monitoring thereof, as applicable);
|
|
“Participant”
|
any Person who acquires a Participation in the Loan;
|
|
“Participation”
|
a participating interest in the Loan, or as the context requires, in any Disbursement (for the avoidance of doubt, a Participant is not a direct lender to the Borrower but only has a contractual relationship with IFC with respect to its participating interest in the Loan or any Disbursement);
|
|
“Peak Debt Service Coverage Ratio”
|
the ratio obtained by dividing:
|
|
(i) the aggregate, for the Financial Year most recently ended prior to the relevant date of calculation for which audited financial statements are available, of the Borrower's (A) Net Income, (B) Non-Cash Items and (C) the amount of all payments that were due during that Financial Year on account of interest and other charges on Financial Debt (to the extent deducted from Net Income);
|
||
by
|
||
(ii) the aggregate of (A) the highest aggregate amount, in any Financial Year after the Financial Year described in clause (i) above until the final scheduled maturity of the Loan, of all scheduled payments (including balloon payments) falling due on account of principal of Long-term Debt and interest and other charges on all Financial Debt and (B) without double counting any payment already counted in the preceding sub-clause (A), any payment required to be made to any debt service account in such Financial Year under the terms of any agreement providing for Financial Debt;
|
||
where, for the purposes of clause (ii) above:
|
||
(x) subject to sub-clause (y), for the computation of interest payable during any period for which the applicable rate is not yet determined, that interest shall be computed at the rate in effect at the time of the
|
relevant date of calculation; and | ||
(y) interest on Short-term Debt in such Financial Year shall be computed by reference to the aggregate amount of interest thereon paid during the Financial Year in which the relevant date of calculation falls up to the end of the period covered by the latest quarterly financial statements prepared by the Borrower multiplied by a factor of 4, 2 or 4/3 depending on whether the computation is made by reference to the financial statements for the first quarter, the first two quarters or the first three quarters, respectively;
|
||
“Performance Standards”
|
IFC’s Performance Standards on Social & Environmental Sustainability, dated April 30, 2006, copies of which have been delivered to and receipt of which has been acknowledged by the Borrower;
|
|
“Potential Event of Default”
|
any event or circumstance which would, with notice, lapse of time, the making of a determination or any combination thereof, become an Event of Default;
|
|
“Power Agreement with Napocor”
|
the National Power Corporation-Manila Electric Company Power Supply Contract for the power requirements of the Borrower and any agreements and supplements related thereto as approved by the Energy Regulatory Commission of the Philippines;
|
|
“Prohibited Activity”
|
an activity specified in Annex F;
|
|
“Project Documents”
|
(i) Solar Cell and Module Contract Manufacturing Agreement, dated January 1, 2004 between SPML and SPTL;
|
|
(ii) Solar Cell and Module Contract Manufacturing Agreement, dated January 1, 2005 between SPTL and SunPower Systems Sarl;
|
||
(iii) Supply Agreement, dated July 21, 2008 between SPML and SunPower Systems Sarl;
|
||
(iv) Amended and Restated Agreement to Share Costs and Risks of Intangibles Development dated January 5, 2009 among SunPower Corporation, SunPower Corporation, Systems and SunPower Technology, Ltd.;
|
||
(v) Power Agreement with Napocor;
|
(vi) Registration Agreement dated August 13, 2003 between Philippine Economic Zone Authority and SunPower Philippines Manufacturing Ltd. (Branch Office);
|
||
(vii) Supplemental Agreement dated October 11, 2006 between Philippine Economic Zone Authority and SunPower Philippines Manufacturing Ltd. (Branch Office); and
|
||
(viii) Supplemental Agreement dated May 30, 2007 Philippine Economic Zone Authority and SunPower Philippines Manufacturing Ltd. (Branch Office).
|
||
“Prospective Debt Service Coverage Ratio”
|
with respect to the Borrower or the Guarantor, the ratio obtained by dividing:
|
|
(i) the aggregate, for the Financial Year most recently ended prior to the relevant date of calculation for which audited financial statements are available, of such Person’s (A) Net Income, (B) Non-Cash Items and (C) the amount of all payments that were due during that Financial Year on account of interest and other charges on Financial Debt (to the extent deducted from Net Income);
|
||
by
|
||
(ii) the aggregate of (A) all scheduled payments (including balloon payments) that fall due during the Financial Year in which the relevant date of calculation falls on account of principal of Long-term Debt and interest and other charges on all Financial Debt and (B) without double counting any payment already counted in the preceding sub-clause (A), any payment made or required to be made to any debt service account under the terms of any agreement providing for Financial Debt;
|
||
where, for the purposes of clause (ii) above:
|
||
(x) subject to sub-clause (y) below, for the computation of interest payable during any period for which the applicable rate is not yet determined, that interest shall be computed at the rate in effect at the time of the relevant date of calculation; and
|
||
(y) interest on Short-term Debt payable in the Financial Year in which the relevant date of calculation falls shall be computed by reference to the aggregate
|
amount of interest thereon paid during that Financial Year up to the end of the period covered by the latest quarterly financial statements prepared by the Borrower multiplied by a factor of 4, 2 or 4/3 depending on whether the computation is made by reference to the financial statements for the first quarter, the first two quarters or the first three quarters, respectively;
|
“S&EA”
|
the social and environmental assessment prepared by the Borrower in respect of its and its Subsidiaries’ Operations in accordance with the Performance Standards;
|
|
“S&E Management System”
|
the Borrower’s social and environmental management system enabling it to identify, assess and manage risks relating to its and its Subsidiaries’ Operations on an ongoing basis;
|
|
“Sanctionable Practice”
|
any Corrupt Practice, Fraudulent Practice, Coercive Practice, Collusive Practice, or Obstructive Practice, as those terms are defined herein and interpreted in accordance with the Anti-Corruption Guidelines attached to this Agreement as Annex B;
|
|
“Securities Laws”
|
(i) the Securities Act of 1933, (ii) the Securities Exchange Act of 1934, (iii) the Sarbanes-Oxley Act of 2002 and (iv) the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the U.S. Securities and Exchange Commission or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder;
|
|
“Security”
|
the security created by or pursuant to the Security Documents to secure all amounts owing by the Borrower to IFC under this Agreement and the Security Documents;
|
|
“Security Documents”
|
the documents providing for the Security consisting of:
|
|
(i) the Debt Service Reserve Account Agreement;
|
||
(ii) the Mortgage Agreement; and
|
||
(iii) any other agreement or document which IFC and the Borrower agree is a “Security Document”;
|
||
“Share Retention Agreement”
|
the agreement entitled “Share Retention Agreement” entered or to be entered into among the Borrower, the Guarantor and
|
IFC; | ||
“Shell Bank”
|
a bank incorporated in a jurisdiction in which it has no physical presence and which is not an Affiliate of a regulated (i) bank or (ii) financing group;
|
|
“Short-term Debt”
|
all Financial Debt other than Long-term Debt;
|
|
“SPML Land Action Plan”
|
the action plan relating to the corporate restructuring of SPML Land as set forth in Annex I hereto;
|
|
“Spread”
|
three per cent (3%) per annum;
|
|
“Subordinated Promissory Note”
|
the Revolving Promissory Note entered or to be entered into between the Borrower, as subordinated debtor, and the Guarantor, as subordinated creditor;
|
|
“Subordination Agreement”
|
the agreement entitled “Subordination Agreement” entered or to be entered into among the Borrower, the Guarantor and IFC;
|
|
“Subsidiary”
|
with respect to any Person, an Affiliate over 50% of whose capital is owned, directly or indirectly by such Person; and
|
|
“World Bank”
|
the International Bank for Reconstruction and Development, an international organization established by Articles of Agreement among its member countries.
|
|
A.
|
Corrupt practices are understood as kickbacks and bribery. The conduct in question must involve the use of improper means (such as bribery) to violate or derogate a duty owed by the recipient in order for the payor to obtain an undue advantage or to avoid an obligation. Antitrust, securities and other violations of law that are not of this nature are excluded from the definition of corrupt practices.
|
|
B.
|
It is acknowledged that foreign investment agreements, concessions and other types of contracts commonly require investors to make contributions for bona fide social development purposes or to provide funding for infrastructure unrelated to the project. Similarly, investors are often required or expected to make contributions to bona fide local charities. These practices are not viewed as Corrupt Practices for purposes of these definitions, so long as they are permitted under local law and fully disclosed in the payor’s books and records. Similarly, an investor will not be held liable for corrupt or fraudulent practices committed by entities that administer bona fide social development funds or charitable contributions.
|
|
C.
|
In the context of conduct between private parties, the offering, giving, receiving or soliciting of corporate hospitality and gifts that are customary by internationally-accepted industry standards shall not constitute corrupt practices unless the action violates applicable law.
|
|
D.
|
Payment by private sector persons of the reasonable travel and entertainment expenses of public officials that are consistent with existing practice under relevant law and international conventions will not be viewed as Corrupt Practices.
|
|
E.
|
The World Bank Group does not condone facilitation payments. For the purposes of implementation, the interpretation of “Corrupt Practices” relating to facilitation payments will take into account relevant law and international conventions pertaining to corruption.
|
|
A.
|
An action, omission, or misrepresentation will be regarded as made recklessly if it is made with reckless indifference as to whether it is true or false. Mere inaccuracy in such information, committed through simple negligence, is not enough to constitute a “Fraudulent Practice” for purposes of this Agreement.
|
|
B.
|
Fraudulent Practices are intended to cover actions or omissions that are directed to or against a World Bank Group entity. It also covers Fraudulent Practices directed to or against a World Bank Group member country in connection with the award or implementation of a government contract or concession in a project financed by the World Bank Group. Frauds on other third parties are not condoned but are not specifically sanctioned in IFC, MIGA, or PRG operations. Similarly, other illegal behavior is not condoned, but will not be considered as a Fraudulent Practice for purposes of this Agreement.
|
|
A.
|
Coercive Practices are actions undertaken for the purpose of bid rigging or in connection with public procurement or government contracting or in furtherance of a Corrupt Practice or a Fraudulent Practice.
|
|
B.
|
Coercive Practices are threatened or actual illegal actions such as personal injury or abduction, damage to property, or injury to legally recognizable interests, in order to obtain an undue advantage or to avoid an obligation. It is not intended to cover hard bargaining, the exercise of legal or contractual remedies or litigation.
|
|
1.
|
Securities and Exchange Commission (SEC) Certificate of Registration of the Articles of Incorporation and By-Laws of the Borrower, as amended
|
|
2.
|
SEC Certificate of Registration of the Articles of Incorporation and By-Laws of SPML Land, as amended
|
|
3.
|
Philippine Economic Zone Authority (PEZA) Registration Agreements and Certificates of Registration, with amendments and supplements as applicable, for all production lines of the Borrower
|
|
4.
|
Bureau of Internal Revenue Registration of the Borrower, and all tax registrations, certificates of exemption, and authorizations, including importation licenses and clearances
|
|
5.
|
Business Permits issued by the Philippine Local Government Units where the operations of the Borrower are located
|
|
6.
|
Certificates of Title to the Premises (as defined in Part 3 of the Mortgage Loan Agreement) and all Real Assets (as defined in Part 3 of the Mortgage Loan Agreement) ,as applicable, issued by the Register of Deeds where such properties are located
|
|
7.
|
Certificates of Tax Declaration of Real Property over the Real Assets not otherwise covered by a Certificate of Title issued by the local government units where such properties are located
|
|
9.
|
SPML Land’s Board authorization and approval of the Mortgage (to the extent of the mortgage of its land and building in Batangas)
|
|
10.
|
SPML Land’s Shareholder Approval of the Mortgage (to the extent that the mortgaged assets constitute all or substantially all of its assets)
|
|
11.
|
SunPower Corporation’s Board authorization and approval of the Transaction Documents (to the extent applicable to it)
|
|
12.
|
Certificate of Good Standing of the Borrower issued by the SEC and the Registrar of Companies in the Cayman Islands
|
|
13.
|
Certificate of Good Standing of the Guarantor issued by the Secretary of State of the State of Delaware
|
|
14.
|
Written consent from SPML Land for the Borrower to assign by way of security its leasehold rights to the buildings in Batangas
|
|
15.
|
Written waiver, consent, or confirmation from the Philippine Economic Zone Authority (PEZA) that the first lien constituted upon the Borrower’s real properties or personal properties existing or located inside the Special Economic Zones to answer for any outstanding obligations due and payable to the PEZA has been either waived or is not applicable to the Borrower or any of its assets
|
|
16.
|
A written authorization from PEZA acknowledging the Mortgage (as forming part of the Transaction Documents) and consenting to any transfer of the mortgaged equipment to the winning bidder in the event of a foreclosure sale under the Mortgage
|
|
17.
|
Written consent of each of Union Bank, N.A. and Wells Fargo Bank, National Association, approving and consenting to the Transaction Documents
|
|
18.
|
Entry into the Register of Mortgages and Charges of the Borrower in respect of the mortgages and charges created under the Transaction Documents.
|
|
a)
|
Fire and named perils or Property All Risk, based on new replacement cost of assets (provided that with respect to earthquake coverage for the Philippines operations (i) a PML study be undertaken and completed no later than six months after the date of this Agreement by a competent surveyor engaged by the Borrower and acceptable to IFC; and (ii) after such study, the Borrower and IFC in consultation with each other both agree that such coverage is available on commercially reasonable terms. Only to the extent both IFC and the Borrower, each in their sole discretion, agree such earthquake cover is available on commercially reasonable terms will there be an obligation on the Borrower to include earthquake cover in its Property All Risk coverage.
|
INTRODUCTION
|
|
·
|
IFC’s Loan Agreement requires designated SunPower personnel to complete and submit annual environmental and social monitoring reports in compliance with the schedule stipulated in the Loan agreement.
|
|
·
|
SunPower must report qualitative and quantitative project performance data each year of the investment for the environmental and social monitoring parameters included in this report format.
|
|
6.
|
Compliance with World Bank Group and local environmental requirements as specified in the Loan Agreement
|
|
7.
|
Compliance with World Bank Group and local social requirements as specified in the Loan Agreement
|
Investment
|
Name: Faheen Allibhoy
|
Portfolio
|
Name: Colin Warren
|
|
Officer
|
Manager
|
|||
Telephone Number: +1 (202) 458-4961
|
Telephone Number: +852-2509-8146
|
|||
Facsimile Number: +1 (202) 974-4392
|
Email: cwarren@ifc.org
|
|||
Email: fallibhoy@ifc.org
|
1 ENVIRONMENTAL AND SOCIAL MANAGEMENT
|
To be completed by SunPower authorized representative
|
Name and Title:
Phone:
Fax:
Email:
|
SunPower Information
|
SunPower office physical address:
SunPower web page address:
|
SunPower Employee Name
|
Signature
|
Name of Third Party Organization and
|
Signature
|
Representative Certifying This Document
|
2 OCCUPATIONAL HEALTH AND SAFETY PERFORMANCE (OHS)
|
This reporting period
|
Reporting period- 1 year ago
|
Reporting period- 2 years ago
|
||||
Report TOTAL numbers for each parameter
|
SunPower employees
|
Contractor employees
|
SunPower employees
|
Contractor employees
|
SunPower employees
|
Contractor employees
|
Employees
|
||||||
Man-hours worked
|
||||||
Fatalities
|
||||||
Non-fatal injuries2
|
||||||
Lost workdays3
|
||||||
Vehicle collisions4
|
||||||
Incidence5
|
SunPower employees or contractor employees?
|
Time of death after accident (e.g. immediate, within a month, within a year)
|
Cause of fatality
|
Corrective measures to prevent reoccurrence
|
SunPower employees or contractor employees?
|
Total workdays lost
|
Description of injury
|
Cause of accident
|
Corrective measures to prevent reoccurrence
|
SunPower employees or contractor employees?
|
Cause of collision
|
Corrective measures to prevent reoccurrence
|
SunPower employees or contractor employees?
|
Description of training
|
Number of employees that attended
|
SunPower Fire Safety Verification Activities
|
Mandatory Frequency
|
Date(s) Performed
|
Observed Deficiencies7
|
Corrective Actions and Schedule For Implementation8
|
Fire Drills
|
Minimum: three (3)/year
|
|||
Inspect and certify fire detection and suppression electrical and mechanical systems.
|
Minimum: one (1)/year
|
|||
Inspect, refill/recharge portable fire extinguisher
|
Minimum: two (2) inspections/ year
|
3 SIGNIFICANT ENVIRONMENTAL AND SOCIAL EVENTS
|
Date of event
|
Event description
|
Affected people/environment
|
Reports sent to IFC and/or local regulatory agencies
|
Corrective actions (including cost and time schedule for implementation)
|
4 GENERAL INFORMATION AND FEEDBACK
|
1.
|
Describe print or broadcast media attention given to SunPower during this reporting period related to Environmental, Social or Health and Safety performance of the company.
|
3.
|
Describe any SunPower public relations efforts in the context of communicating environmental and social aspects to external interested parties (e.g. establishment of a web page, hiring of community liaison officer, etc.).
|
5 SUSTAINABILITY OF PROJECT AND ASSOCIATED OPERATIONS
|
|
q
|
Published an environment/sustainability or a corporate social responsibility report (please send copy or provide web link)
|
6 REPORTS TO ILLUSTRATE COMPLIANCE WITH ESAP, IFC PERFORMANCE STANDARDS AND IFC EHS GUIDELINES AND HOST COUNTRY REGULATIONS
|
|
§
|
Emissions Monitoring – Emission Control, Monitoring and Reporting requirements will be established after completion of the study as per agreed Environment and Social Action Plan (ESAP). At a minimum SunPower is required to report on compliance with applicable Philippine regulatory requirements and applicable IFC guideline standards shown in Tables 1 and 2 shown below.
|
|
§
|
Solid and Hazardous Waste Management – Monitor generation and disposal of solid and hazardous waste from each of SunPower’s operating facilities in relation to host country requirements and IFC/WBG environmental guidelines and report the results of each. Include summaries listing vendors used, quantities, cost and location of disposal. For areas of non-compliance, indicate corrective actions to be taken.
|
|
§
|
Community Engagement – Provide brief descriptions of any public consultation and disclosure activities with local communities and other stakeholders conducted (including that done in coordination with government authorities) at various facilities over the reporting period. Report on any SunPower programs intended to benefit the local communities.
|
•
|
Production or activities involving harmful or exploitative forms of force labor and/or harmful child labor.
|
•
|
Production or trade in any product or activity deemed illegal under host country laws or regulations or international conventions and agreements.
|
•
|
Trade in wildlife or wildlife products regulated under Convention on International Trade in Endangered Species of Wild Fauna and Flora.
|
•
|
Commercial logging operations or the purchase of logging equipment for use in primary tropical moist forest (prohibited by the Forestry policy).
|
•
|
Knowingly provide or permit to be provided any product or services (or any text, pictures, graphics, sound, video, or other data in connection with any services) that:
|
|
(i)
|
infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights or publicity of privacy;
|
|
(ii)
|
violate any law, statute, ordinance or regulation (including, without limitation, the laws and regulations governing export control);
|
|
(vi)
|
contain any viruses, Trojan horses, worms, time-bombs, cancel bots or other computer routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
|
Action
|
Deliverable
|
Implementation Date
|
|
Labor and Working Conditions
|
|||
1.
|
Review of Compliance of Workplace Safety
|
||
Review (a) solid and hazardous materials and waste management practices (training, handling, storage and emergency procedures) at its operations, and (b) workplace air quality against relevant standards such as those established by OSHA for exposure to industrial chemicals and vapor, and implement remedial action as necessary. Specific milestones are:
|
Documentary Evidence
Review Report and Recommendation w/schedule for implementation
|
||
(i) Initiate review by qualified professional and complete in 30 days
|
(i) COD10
|
||
(ii) Action plan for implementation of any remedial measures.
|
(ii) LS11+ 30 days
|
||
Pollution Prevention and Abatement
|
|||
2.
|
Emission Standards
|
||
Consistent with IFC Environmental Health and Safety Guidelines, establish emission standards for (a) all liquid effluents (process wastewater, stormwater, utilities, etc. and (b) air emissions. Specific requirements are:
|
Documentary Evidence
|
||
(i) Retain consultant to establish / confirm applicability of existing regulatory standards for (a) emissions to air and (b) discharge to surface water – based on assimilative capacity of ambient environment from cumulative impact. Terms of Reference for consultant to be established in consultation with IFC.
|
(i) Cumulative Impact Assessment (CIA) from LLDA12 confirming use of CIA for establishment of permit parameters/levels for emissions.
Or
|
(i) COD
(ii) LS+180 days
|
|
(ii) Agree with IFC on implementation schedule and resource allocation for any remedial measures that may be required.
|
3.
|
GHG Emissions
|
||
SunPower will monitor and quantify GHG emissions annually in accordance with internationally recognized methodologies. Specifically, SunPower will:
(i) Evaluate technically and financially feasible and cost-effective options to reduce or offset project-related GHG emissions during the design and operation of the project.
(ii) Develop an implementation plan based on assessment.
|
(i) Contract with consultant
Alternatives Assessment Report and Schedule
|
(i) and (ii) LS+180 days
|
Action
|
Deadline
|
A. Organize the retirement fund which qualifies as a Philippine national
|
Within 4 weeks of the date of the Mortgage Loan Agreement
|
B. Obtain tax-exempt status for the retirement fund
|
Within 3 months of the date of the Mortgage Loan Agreement
|
C. Revise capital and ownership structure of SPML Land to achieve the following:
(i) increase equity capitalization level based on a total debt-to-equity ratio of 4:1.
(ii) increase Filipino stake in the equity capitalization, not only in terms of number of shares but also in par value of shares, based on a Filipino-to-foreigner-shareholder ratio of 60:40.
The revised capital and ownership structure specified in this Item C is subject to acceptance by IFC and shall include delivery to IFC of (1) the resolutions of SMPL Land’s Board of Directors and shareholders approving such restructuring and (2) approval by the Philippine Securities and Exchange Commision of the amendment to the Articles of Incorporation of SPML Land.
|
Within 5 months of the date of the Mortgage Loan Agreement
|
D. Transfer Filipino shares to and in the name of the retirement fund
|
Within 5 months of the date of the Mortgage Loan Agreement
|
Name*
|
Office
|
Specimen Signature
|
||
Yours truly,
|
|||
SUNPOWER PHILIPPINES MANUFACTURING LTD.
|
|||
By
|
|||
[Chairman / Director]
|
|
(ii)
|
any provision contained in any document to which the Borrower is a party (including the Loan Agreement) or by which the Borrower is bound; or
|
|
(iii)
|
any law, rule, regulation, Authorization or agreement or other document binding on the Borrower directly or indirectly, limiting or otherwise restricting the Borrower’s borrowing power or authority or its ability to borrow.
|
Yours faithfully,
|
|||
SUNPOWER PHILIPPINES MANUFACTURING LTD.
|
|||
By
|
|||
Authorized Representative
|
Yours faithfully,
|
|||
SUNPOWER PHILIPPINES MANUFACTURING LTD.
|
|||
By
|
|||
Authorized Representative
|
Yours faithfully,
|
|||
SUNPOWER PHILIPPINES MANUFACTURING LTD.
|
|||
By
|
|||
Authorized Representative
|
(1)
|
Sponsors and Shareholdings. Information on significant changes in share ownership of Borrower, the reasons for such changes, and the identity of major new shareholders.
|
(2)
|
Country Conditions and Government Policy. Report on any material changes in local conditions, including government policy changes, that directly affect the Borrower (e.g. changes in government economic strategy, taxation, foreign exchange availability, price controls, and other areas of regulations.)
|
(3)
|
Management and Technology. Information on significant changes in (i) the Borrower’s senior management or organizational structure, and (ii) technology used by the Borrower, including technical assistance arrangements.
|
(4)
|
Corporate Strategy. Description of any changes to the Borrower’s corporate or operational strategy, including changes in products, degree of integration, and business emphasis.
|
(5)
|
Markets. Brief analysis of changes in Borrower’s market conditions (both domestic and export), with emphasis on changes in market share and degree of competition.
|
(6)
|
Operating Performance. Discussion of major factors affecting the year’s financial results (sales by value and volume, operating and financial costs, profit margins, capacity utilization, capital expenditure, etc.).
|
(7)
|
Financial Condition. Key financial ratios for previous year, compared with ratios covenanted in the Loan Agreement.
|
C T Corporation System
|
|||||
By:
|
|||||
Name:
|
|||||
Title:
|
|||||
Acknowledged and Agreed:
|
|||||
SunPower Corporation
|
|||||
By:
|
|||||
Name:
|
|||||
Title:
|
“Action”
|
means any litigation, claim, demand, action, suit, allegation, arbitration, inquiry, investigation, discovery, audit, assessment, or proceeding by or before any Governmental Authority;
|
“Applicable Law”
|
means any applicable statute, law, ordinance, regulation, rule, code, order, requirement, or rule of law of a Governmental Authority or other Authority;
|
“Authorization”
|
means any license or approval (howsoever evidenced), registration, filing or exemption from, by or with any Governmental Authority or other Authority, and all corporate, creditors’ and shareholders’ approvals or consents;
|
“Chattels”
|
means all the Present Chattel listed in Annex “B” (Description of Present Chattel) and all the Future Chattel as may be listed in Annex “B-1” (Description of Future Chattel);
|
“Chattel Mortgage”
|
means the mortgage or mortgages created and to be created by the Mortgagor over the Chattel pursuant to this Mortgage Agreement;
|
“Event of Default”
|
means an Event of Default as defined under the Loan Agreement and any of the events of default enumerated under Section 6.05 (Events of Default);
|
“Future Chattels”
|
means such Chattel at any time hereafter owned or acquired by Mortgagors, wherever located, and all products thereof, whether in the possession of Mortgagor, any warehousemen, any bailee or any other Person, or in process of delivery, and whether located at Mortgagors’ places of business or elsewhere, including all improvements, replacements, substitutions, increases, additions, accessories, and accretions thereto, all such goods after they have been severed and removed from any of said real property, whether or not covered by a separate list or supplemental mortgage
|
“Future Real Assets”
|
means the Real Assets, including those listed in Annex “A-1” (Description of Future Real Assets), other than those classified as Present Real Assets;
|
“Governmental Authority”
|
means the Philippine government, or any political subdivision or department of such government or political subdivision, or any Philippine regulatory, self-regulatory, or administrative authority, agency, instrumentality, department, bureau, board, or commission, or any Philippine court, tribunal, or judicial or arbitral body, or any arbitral tribunal, whether Philippine or otherwise.
|
“Insurance Contracts”
|
means any and all agreements between any of the Mortgagors and any Person, the latter as insurer, whereby the insurer undertakes, for a consideration, to indemnify any of the Mortgagors (or Mortgagee, as the Mortgagor’s designated loss-payee) against loss, damage or liability in respect of the Premises, or the Assets, or the ownership or operation thereof, arising from an unknown or contingent event;
|
“Lease Rights”
|
means the rights of SPML under the Contract of Lease between SPML and SPML Land dated August 2006 (Doc. No. 90, Page No. 18, Book No. IX, Series of 2006 dated 5 September 2006 of Notary Public Basilio B. Pooten for Sta. Rosa, Laguna), including any and all renewals and extensions thereof, covering the lease by SPML of the Premises from SPML Land;
|
“Mortgage”
|
means the Real Estate Mortgage and the Chattel Mortgage, together with the rights, benefits and remedies of the Mortgagee inherent therein or provided for herein;
|
“Mortgage Supplements”
|
means Mortgage Supplements in the form of Exhibit “A” (Form of Mortgage Supplement) hereof to be executed by the Mortgagor(s) and the Mortgagee, each of which shall be a “Mortgage Supplement” and numbered consecutively;
|
“Mortgagors”
|
means SMPL and SPML Land, and “Mortgagor” means either of them, as the context requires;
|
“Obligations”
|
means any payment, performance, or other obligation of any Loan Party of any kind, including, without limitation, any liability of any Loan Party on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, or unsecured, and whether or not such claim is discharged, stayed, or otherwise affected by any proceeding referred to in Section 5.02(f) of the Loan Agreement; provided that, without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Financing Documents include (a) the obligation to pay principal, interest, commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities, and other amounts payable by any of the Loan Parties under any such Financing Documents and (b) the obligation of the Loan Parties to reimburse any amount
in respect of any of the foregoing that IFC, in its sole discretion, may elect to pay or advance on behalf of the Loan Parties;
|
“Order”
|
means any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any Governmental Authority or other Authority;
|
“Premises”
|
means (i) the parcel of land covered by Transfer Certificate of Title No. T-117960 located at Municipality of Tanauan, Province of Batangas with an area of 60,000 square meters and the building upon such parcel covered by Tax Declaration of Real Property No. 047-01263 (Property Identification No. 024-29-047-12-0010B1), (ii) the parcel of land covered by Transfer Certificate of Title No. T-132528 and Tax Declaration of Real Property No. 047-01260 (Property Identification No. 024-29-047-12-0011) located at the Municipality of Tanauan, Province of Batangas with an area of 20,000 square meters, and (iii) the parcel of land covered by Transfer Certificate of Title No. T-132527 and Tax Declaration No. 047-01261 (Property Identification No. 024-29-047-12-0047) located at the Municipality of Tanauan, Province of Batangas with an area of 6,456 square meters each of (i), (ii), and (iii) being registered in the name of SPML Land;
|
“Present Chattels”
|
means the Chattels that exist and are owned by any of the Mortgagors at the time of the execution of this Mortgage Agreement, including those listed on Annex “B” (Description of Present Chattel);
|
“Present Real Assets”
|
means the Real Assets that exist and are owned by any of the Mortgagors at the time of the execution of this Mortgage Agreement, including those listed on Annex “A” (Description of
|
“Property”
|
means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, and regardless of whether owned or in existence at the date of the execution of the Loan Agreement, or thereafter acquired or created;
|
“Real Assets”
|
means all the Present Real Assets listed in Annex “A” (Description of Present Real Assets) and all the Future Real Assets listed in Annex “A-1” (Description of Future Real Assets);
|
“Real Estate Mortgage”
|
means the mortgage created and to be created by the Mortgagors over the Real Assets pursuant to this Mortgage Agreement; and
|
“Termination Date”
|
means the date upon which all of the following shall have occurred: (i) all Obligations shall have been irrevocable and unconditional paid in full, (ii) the Loan shall have been fully disbursed or any undisbursed portion of the Loan shall have been cancelled in accordance with the Loan Agreement, and (iii) the Loan Agreement shall have been terminated in accordance with its terms.
|
|
(a)
|
As security for the timely payment, discharge, observance, and performance by the Loan Parties of all of the Obligations to the extent set forth in Section 2.01(d) (Creation of the Real Estate Mortgage), each of the Mortgagors, to the extent of its respective right, title and interest in and to the Real Assets, hereby:
|
|
(i)
|
creates, establishes, and constitutes a first ranking Real Estate Mortgage in favor of the Mortgagee on the Present Real Assets;
|
|
(ii)
|
agrees to and does create, establish, and constitute a first ranking Real Estate Mortgage in favor of the Mortgagee on the Future Real Assets, subject to the same terms and conditions of this Mortgage Agreement as are applicable to the Real Estate Mortgage on the Real Assets, upon their coming into existence and/or the acquisition by either of the Mortgagors of ownership of such Future Real Assets, and
|
|
(iii)
|
agrees that, without prejudice to the obligation of the Mortgagor to execute and register the Mortgage Supplements, a first ranking Real Estate Mortgage on the Future Real Assets shall be created, established, and constituted upon the execution of the corresponding Mortgage Supplement under Section 2.03 (Execution and Registration of Mortgage Supplements), in respect of each such Future Real Asset over which a first ranking Real Estate Mortgage is not created under the immediately preceding sub-clause (ii), subject to the same terms and conditions of this Mortgage Agreement as are applicable to the Real Estate Mortgage on the Present Real Assets.
|
|
(b)
|
For the avoidance of doubt, in addition to the inclusion of SPML’s Lease Rights to the Premises in the enumeration of Present Real Assets in Annex A (Registration and Execution of Mortgage Supplements) covered by the Real Estate Mortgage, SPML hereby cedes, transfers, and conveys, through an assignment by way of security, all its rights, title, and interests over the Lease Rights in favor of the Mortgagee. Furthermore, SPML Land hereby (i) consents to the registration of the Real Estate Mortgage over such Lease Rights on any title to the Premises that SPML Land may have, including Transfer Certificate No. T-117960 (formerly Transfer Certificate No. T-103232) and Declaration of Real Property No. 047-01263 (Property Identification No. 024-29-047-12-0010B1), and (ii) undertakes to cooperate with SPML and/or IFC to effect such registration and perform all other acts necessary to perfect and otherwise make effective
the assignment by way of security and Real Estate Mortgage over such Lease Rights.
|
|
(c)
|
The Real Estate Mortgage constituted herein shall extend to the Mortgagors’ interests from time to time in any of the Real Assets which are not fully paid for by the Mortgagors at the time of their coming into existence and/or upon the acquisition by the Mortgagors of ownership thereof, and shall include all Property of every nature and description taken in exchange, substitution, or replacement of the Real Assets, which shall be subject to the Lien of such mortgage in the same manner and to the same extent as if now existing and included in the Real Estate Mortgage on the Real Asset.
|
|
(d)
|
The Real Estate Mortgage is and shall be constituted in favor of the Mortgagee and shall stand as security for the Obligations to the extent of the principal amount of up to US$75,000,000.00 plus interests, fees, charges, and such other amounts that may be due under the Transaction Documents.
|
|
(a)
|
cause the Real Estate Mortgage on the Present Real Assets to be registered with the appropriate Governmental Authority with jurisdiction over the place where such Present Real Assets are located,
|
|
(b)
|
perform such other acts, deeds, registrations, deposits, and formalities necessary or advisable to give full effect to, ensure the validity, perfection, and first ranking priority of, and render enforceable against the Mortgagors and all third parties, such Real Estate Mortgage and this Mortgage Agreement,
|
|
(c)
|
furnish the Mortgagee with evidence, reasonably satisfactory to the Mortgagee, that such registrations and all acts, deeds, deposits, and formalities, as required under the preceding subsections (a) and (b) of this Section 2.02 (Registration of Real Estate Mortgage) have been made and performed. For the avoidance of doubt, the documents referred to in Part 1 of Annex “C” (Sufficient Evidence of Registration) hereof shall be considered as reasonably satisfactory evidence that the Mortgagors have complied with their obligations under this Section 2.02 (Registration of Real Estate Mortgage), and,
|
|
(d)
|
where any machinery, equipment, or other property which may be considered a movable is covered by the Real Estate Mortgage, make all necessary notices to, and secure all necessary consents from, the appropriate Government Authority or other Authority, including the First Philippine Industrial Park Special Economic Zone, to ensure that any transfer of the Present Real Assets out of the Premises, including a transfer following a foreclosure on the Real Estate Mortgage, shall not be prevented or delayed or otherwise frustrated by any Governmental Authority or other Authority; provided, that in the event of any transfer out of the Premises, the Mortgagors hereby undertake to pay all the necessary Taxes and duties due upon the Present Real Assets that may arise by virtue of such transfer out of the Premises.
|
|
(a)
|
cause the registration of such Mortgage Supplement with the appropriate Registry with jurisdiction over the place where the property covered by such Mortgage Supplement is located,
|
|
(b)
|
perform such other acts, deeds, registrations, deposits, and formalities necessary or advisable to give full effect to, ensure the validity, perfection, and first ranking priority of, and render enforceable against the Mortgagor and all third parties
|
|
(c)
|
furnish the Mortgagee with evidence reasonably satisfactory to the Mortgagee that such registration and all acts, deeds, deposits, and formalities, as required under the preceding subsections (a) and (b) of this Section 2.03 (Execution and Registration of Mortgage Supplements), have been made and performed, and
|
|
(d)
|
where any machinery, equipment, or other property which may be considered a movable is covered by the Real Estate Mortgage, make all necessary notices to, and secure all necessary consents from, the appropriate Government Authority or other Authority, including the First Philippine Industrial Park Special Economic Zone, to ensure that any transfer of the Future Real Assets out of the Premises, including a transfer following a foreclosure on the Real Estate Mortgage, shall not be prevented or delayed or otherwise frustrated by any Governmental Authority or other Authority; provided, that in the event of any transfer out of the Premises, the Mortgagors hereby undertake to pay all the necessary Taxes and duties due upon the Future Real Assets that may arise by virtue of such transfer out of the Premises.
|
|
(a)
|
As security for the timely payment, discharge, observance, and performance by Loan Parties of all of the Obligations to the extent set forth in Section 3.01(c) (Creation of the Chattel Mortgage), each of the Mortgagors, to the extent of its right, title, and interest in and to the Chattel, hereby:
|
|
(i)
|
creates, establishes, and constitutes a first ranking Chattel Mortgage in favor of the Mortgagee on the Present Chattel;
|
|
(ii)
|
agrees to and does create, establish, and constitute a first ranking Chattel Mortgage in favor of the Mortgagee on the Future Chattel, subject to the same terms and conditions of this Mortgage Agreement as are applicable to the Chattel Mortgage on the Present Chattel, upon their coming into existence and/or the acquisition by either of the Mortgagors of ownership of such Future Chattel, and
|
|
(b)
|
The Chattel Mortgage shall extend to any of the Mortgagors’ interests from time to time in any of the Chattel which are not fully paid for by such Mortgagor at the time of their coming into existence and/or upon the acquisition by the Mortgagor of ownership thereof.
|
|
(c)
|
The Chattel Mortgage is and shall be constituted in favor and for the benefit of the Mortgagee and shall stand as security for the Obligations to the extent of the principal amount of up to US$65,000,000.00 plus interests, fees, charges, and such other amounts that may be due under the Transaction Documents.
|
|
(a)
|
cause the Chattel Mortgage on the Present Chattels to be registered with the appropriate Governmental Authority with jurisdiction over the place where such Present Chattels are located and the principal place of business of the relevant Mortgagor,
|
|
(b)
|
perform such other acts, deeds, registrations, deposits, and formalities necessary or advisable to give full effect to, ensure the validity, perfection, and first ranking priority of, and render enforceable against the Mortgagor and all third parties, such Chattel Mortgage and this Mortgage Agreement,
|
|
(c)
|
furnish the Mortgagee with evidence, reasonably satisfactory to the Mortgagee, that such registrations and all acts, deeds, deposits, and formalities, as required under the preceding subsections (a) and (b) of this Section 3.02 (Registration of Chattel Mortgage), have been made and performed. For the avoidance of doubt, the documents referred to in Part 2 of Annex “C” (Sufficient Evidence of Registration) hereof shall be considered as reasonably satisfactory evidence that the Mortgagors have complied with their obligations under this Section 3.02 (Registration of Chattel Mortgage), and
|
|
(d)
|
make all necessary notices to, and secure all necessary consents from, the appropriate Government Authority or other Authority, including the First Philippine Industrial Park Special Economic Zone, to ensure that any transfer of the Present Chattels out of the Premises, including a transfer following a foreclosure on the Chattel Mortgage, shall not be prevented or delayed or
|
|
(a)
|
cause the registration of such Mortgage Supplement with the appropriate Registry with jurisdiction over the place where the Chattel covered by such Mortgage Supplement is located and the principal place of business of the Mortgagor concerned,
|
|
(b)
|
perform such other acts, deeds, registrations, deposits, and formalities necessary or advisable to give full effect to, ensure the validity, perfection, and first ranking priority of, and render enforceable against the Mortgagor and all third parties, such Chattel Mortgage,
|
|
(c)
|
furnish the Mortgagee with evidence reasonably satisfactory to the Mortgagee that such registration and all acts, deeds, deposits, and formalities, as required under the preceding subsections (a) and (b) of this Section 3.03 (Execution and Registration of Mortgage Supplements), have been made and performed, and
|
|
(d)
|
make all necessary notices to, and secure all necessary consents from, the appropriate Government Authority or other Authority, including the First Philippine Industrial Park Special Economic Zone, to ensure that any transfer of the Future Chattels out of the Premises, including a transfer following a foreclosure on the Chattel Mortgage, shall not be prevented or delayed or otherwise frustrated by any Governmental Authority or other Authority; provided, that in the event of any transfer out of the Premises, the Mortgagors hereby undertake to pay all the necessary Taxes and duties due upon the Future Chattels that may arise by virtue of such transfer out of the Premises.
|
|
(i)
|
This Mortgage Agreement and all Mortgage Supplements, when duly registered pursuant to Articles II and III, shall constitute the legal, valid, and binding obligations of the Mortgagors, enforceable in accordance with their respective terms, and shall create a valid, perfected, and enforceable first lien and mortgage of first rank on the Assets in favor of IFC.
|
|
(ii)
|
There is no provision in the Mortgagors’ articles of incorporation, by-laws, or other constitutive documents, and no provision of any Authorization or any other agreement or instrument to which either of the Mortgagors are parties or by which either of the Mortgagors or any of their property, including all the Real Assets and Chattels, may be bound, and no statute, rule, regulation, judgment, decree, or order of any court or agency applicable to Mortgagors which would be contravened by the execution and delivery of the Mortgage Agreement, or by the performance of any provision, any covenant, or the terms and conditions of this Mortgage Agreement.
|
|
(b)
|
Corporate Existence. Each of the Mortgagors is duly incorporated, validly existing, and in good standing, has their principal office at the addresses indicated in this Mortgage Agreement, and is registered and/or qualified to do business in every jurisdiction where such registration or qualification is necessary.
|
|
(c)
|
Corporate Power. Each of the Mortgagors has the power to enter into and perform this Mortgage Agreement and has taken or will take all necessary actions to authorize the execution and delivery of this Mortgage Agreement and the performance of the terms and conditions hereof, including having secured or securing the consent of its stockholders if required under its charter; each of the Mortgagors has full legal right, power, and authority to carry on its present businesses and Operations, own properties and assets, incur the obligations provided for in this Mortgage Agreement, and execute, deliver, perform, and observe the terms and conditions of this Mortgage Agreement; and this Mortgage Agreement has been duly executed by each of the Mortgagors.
|
|
(d)
|
Corporate Authorization. All corporate actions taken by each of the Mortgagors have been duly authorized, and each of the Mortgagors has not taken any action that in any respect conflict with, constitute a default under, or result in a violation of any provision of their respective articles of incorporation, by-laws, or other constitutive documents. Each of the Mortgagors has taken all appropriate and necessary corporate and legal actions to authorize the execution, delivery, and performance of this Mortgage Agreement.
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(e)
|
Consents and Registrations. Except for the registration with the appropriate Governmental Authority of the Mortgage over the Present Real Assets and the Present Chattel after the execution of this Mortgage Agreement and the
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(f)
|
No Conflict. The execution, delivery, and performance of this Mortgage Agreement by the Mortgagor does not and will not (i) violate, conflict with, or result in the breach of any provision of each of the Mortgagor’s articles of incorporation, by-laws, or other constitutive documents; (ii) violate any indenture, agreement, mortgage, contract, or other undertaking or instrument to which either of the Mortgagors is a party or which is binding upon the either of the Mortgagors or any of their respective properties or assets, nor result in the creation or imposition
of any security interest, Lien, charge, or encumbrance on any of the assets or properties of either of the Mortgagors pursuant to the provisions of any such indenture, agreement, mortgage, contract, or other undertaking or instrument; (iii) give rise to any preemptive or similar right on behalf of any Person; (iv) conflict with or violate any law or Order applicable to either of the Mortgagors or any of their respective assets, real property, or businesses; or (v) conflict with, result in any breach of, constitute a default (or event which, with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation, or cancellation of, or result in the creation of
any Lien on, any of the shares of either of the Mortgagors or on any of their respective assets, real property, or rights pursuant to any note, bond, mortgage, or indenture, contract, agreement, lease, sublease, license, permit, franchise, or other instrument or arrangement to which either of the Mortgagors is a party or by which the Mortgagor or any such assets, real property, or rights are bound or affected.
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(g)
|
Ownership of Assets. Each of the Mortgagors (i) is the legal and beneficial owner of, has good, legal, valid, indefeasible title to (free and clear of all Liens), has marketable rights, interest, and/or title to, and has full power and authority to transfer, convey, mortgage, and give a security interest of first rank in, the Present Real Assets and the Present Chattel owned by it; and (ii) will be the legal and beneficial owner of, will have good, legal, valid, indefeasible title to (free and clear of all Liens), and will have full power and authority to transfer, convey, mortgage, and give a security interest of first rank in, the Future Real Assets and the Future Chattel at the time of such Mortgagor’s acquisition thereof;
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(h)
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Real Assets. (i) Each of the Mortgagors has good fee simple or title of lease to all of their, respective real property, including the Premises. Each parcel of such real property is zoned properly for such Mortgagor to conduct its business as currently conducted, as evidenced by validly issued Authorizations required for operations. In the case of any parcel of real property under construction or in the process of alteration, the respective Mortgagor has all requisite Approvals for such construction or alteration, as the case may be, and such Authorizations have been validly issued or obtained and are current. (ii) Each parcel of real property owned or leased by the Mortgagors, including the Premises, is owned or leased free and clear of all Liens, not subject to any Order to be sold, and not being condemned, expropriated, or otherwise taken by any Governmental Authority with or without payment of compensation
therefore and no such condemnation, expropriation, or taking has been proposed. (iii) All leases relating to the real property of the Mortgagors, including the Premises, and all amendments and modifications to such leases are in full force and effect and have not been modified or amended, and there exists no default under any such leases by the Mortgagors, nor any event which with notice or lapse of time or both would constitute a default thereunder by the Mortgagors. As of the execution of this Agreement, for all leases that have lapsed or been terminated, the Mortgagors have entered into new leases at terms no less favorable to the Mortgagors than prevailing market terms. (iv) The Mortgagors have the full right to exercise any renewal options running to it contained in the leases and subleases pertaining to the real property, including the Premises, on the terms and conditions contained therein, and upon due exercise would be entitled to enjoy the use of such real
property for the full term of such renewal options, subject to the terms and conditions pertaining thereto.
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(i)
|
Priority of Mortgages. Subject to the registrations stated in Section 2.02 (Registration of Real Estate Mortgage) and Section 3.02 (Registration of Chattel Mortgage), the Mortgage constitutes a Lien of first rank in favor of the Mortgagee in and to the Assets, enforceable as such against the Mortgagors, their creditors, and all third parties, prior and superior to all other Liens, except for liens that are mandatorily preferred under the laws of the Philippines.
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(j)
|
No Default. No event has occurred and is continuing or would result from the making of the Mortgage Agreement which constitutes an Event of Default or which, with notice or lapse of time or any other condition or any combination of the foregoing, would become such an Event of Default under this Mortgage Agreement or any other agreement.
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(k)
|
No Litigation. (i) There are no Actions by or against either of the Mortgagors or affecting any of the Assets, assets, real property, rights, businesses, or other properties (tangible or intangible) of either of the Mortgagors pending before any Governmental Authority, other Authority, or tax authority. (ii) There are no Actions involving any other Person that threaten to and there are no circumstances existing which make it likely that an Action will be brought by or before any Governmental Authority, or other Authority, or other Person against either of the
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(l)
|
No Immunity. Neither of the Mortgagors nor any of their respective properties or assets or the Assets enjoy any right of immunity from suit, jurisdiction of any competent court, attachment prior to judgment, attachment in aid of execution, execution of judgment, or set-off in respect of the Mortgagor’s obligations under this Mortgage Agreement.
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(m)
|
No Prohibition. Neither of the Mortgagors are restricted or prohibited in any way from the payment, deduction, or withholding of any income Tax, withholding Tax, or any other Tax arising out of this Mortgage Agreement and required by any Governmental Authority or other Authority to be paid, withheld, or deducted; and neither of the Mortgagors are restricted or prohibited from performing their other obligations with respect to such Taxes under this Mortgage Agreement.
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(n)
|
Environmental Matters. To their knowledge, the Mortgagors are not in violation of any Applicable Laws regarding the environment and no condition exists with respect to the Mortgagors or their property that, with notice or the passage of time, or both, has resulted or is reasonably likely to result in a material claim, loss, or liability under any Applicable Laws regarding the environment. The Mortgagors have not received any notice from any Person that the either of the Mortgagors or the operation or condition of any property leased or operated by the Mortgagors are or were in material violation of or otherwise are alleged to have liability under any Applicable Laws regarding the environment, including responsibility (or potential responsibility) for the cleanup or other remediation of any pollutants, contaminants, or hazardous or toxic wastes, substances, or materials at, on, beneath, or originating from, any
of their property.
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(o)
|
Solvency. The Mortgagors are not subject to liquidation, dissolution, work-out, composition, reorganization, or bankruptcy proceedings, are not generally unable to pay their debts as they become due, have not made a general assignment for the benefit of their creditors, and have not taken any action in furtherance of, or have not indicated their consent to or acquiescence in, any of the foregoing.
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(p)
|
Certain Payments. None of the Mortgagors, any director of the Mortgagors, or any agent of the Mortgagors have unlawfully or illegally offered or made any payment to a government official or an official of a company owned or controlled by a government to obtain or retain a business or obtain any advantage for the Mortgagors.
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(q)
|
Disclosure. None of the documents, certificates, or written statements that have been furnished to the Mortgagee by or on behalf of the Mortgagors in connection with this Mortgage Agreement and the transactions contemplated by this Mortgage Agreement, including the representations and warranties in this Section 4.01 (Representations and Warranties of the Mortgagors), contain any untrue statement of a fact or omit to state a fact necessary in order to make the statements contained herein not misleading, in light of the circumstances then existing, and all copies of such documents so furnished are and will be true, complete, and correct copies. To the best knowledge of the Mortgagors after due inquiry, there is no fact that has specific application to any of the Mortgagors (other than general economic or industry conditions) other than as set forth in this Mortgage Agreement, the Loan Agreement,
or the other Financing Documents.
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(a)
|
perfecting, confirming, and/or maintaining the validity, first priority, and enforceability of the Mortgage;
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(b)
|
mortgaging (with first ranking priority) to the Mortgagee for its benefit, any Property of every nature and description taken in exchange, substitution, or replacement of the Assets in accordance with Article II (Real Estate Mortgage) and Article III (Chattel Mortgage) in the same manner and to the same extent as if now existing and included in the Mortgage on the Assets; and
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(a)
|
Defense of Title and Possession. The Mortgagors shall, at their own expense, warrant and defend their title to, interest in, and/or possession of the Assets against the claims and demands of all Persons whomsoever, except the claims of the Mortgagee pursuant to this Mortgage Agreement. The Mortgagors shall promptly, and in any case within three Business Days after they or their officers obtain knowledge of any litigation or governmental or other proceedings which could materially and adversely affect the Assets, furnish the Mortgagee a notice of such litigation or proceedings, giving full details thereof and containing a description of the action that either of the Mortgagors has taken or proposes to take with respect thereto. In the event the Mortgagee becomes involved in any litigation relating to or connected with any or all of the Assets, all expenses of the Mortgagee in such litigation, including attorney's
fees, shall be for the account of the Mortgagor who shall pay for them upon demand. In the event that the Mortgagee intends to initiate litigation relating to or connected with any or all of the Assets against third parties other than any of the Mortgagors, the Mortgagee shall, before initiating any such litigation, exert reasonable efforts to consult with the relevant Mortgagor. If the Mortgagor fails to pay the abovementioned litigation expenses, the Mortgagee may, in its sole discretion and without any obligation to do so, advance the same, and all sums so advanced shall be reimbursed by the Mortgagor on demand with interest at the rate of 12% per annum from date of disbursement to date of reimbursement, and until so reimbursed, shall form part of the Obligations secured hereby.
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(b)
|
Repair and Maintenance. The Mortgagors shall at all times keep the Assets in good condition, and shall promptly make or cause to be made repairs, restorations, replacements, or, in general, do or cause to be done all such acts and things as may be required or necessary for the care, preservation, and maintenance of the Assets. If any of the Mortgagors fail to do so, the Mortgagee may, in its discretion and without any obligation to do so, upon prior notice to the relevant Mortgagor, keep the Assets in good repair and condition, and all expenses which the Mortgagee may incur in connection therewith shall be reimbursed by the Mortgagors on demand, plus interest thereon at the rate of 12% per annum, and such amounts shall form part of the Obligations secured hereby.
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(c)
|
Appraisal. SPML shall submit financial statements as provided in the Loan Agreement and the Mortgagors shall, if required by the Mortgagee, at the Mortgagors own cost and expense, cause the Assets to be appraised by an
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(d)
|
Defense of Lien. At all times, and at their own expense, the Mortgagors shall do everything necessary in the judgment of the Mortgagee to:
|
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(i)
|
maintain in full force and effect and protect and preserve the Lien over the Assets, including the priority thereof, in favor of the Mortgagee created pursuant under this Mortgage Agreement;
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(ii)
|
promptly inform the Mortgagee in writing of any material loss or damage affecting the Assets, together with details of the extent of such loss and damage, and of any event which is likely to materially reduce its value;
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(iii)
|
promptly notify the Mortgagee of any levy, assessment, imposition, or charge on, or the filing of any Liens on, the Assets, or of any event which may lead to the loss, forfeiture, or sale of the Assets.
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(e)
|
Inspections. The Mortgagors shall provide the Mortgagee with any information pertaining to this Mortgage Agreement as may be requested by the Mortgagee, and shall, upon thee Mortgagee’s request and with reasonable prior notice to the Mortgagors, permit, at the Mortgagors’ own cost and expense, the officers or designated representatives of the Mortgagee and CAO, at such times during regular business hours, and to such extent as the Mortgagee may request, to visit and inspect the Premises and to inspect and examine the records of the Mortgagors relating to the Assets, and promptly furnish the Mortgagee such information relating to the Assets as the Mortgagee may, from time to time, request; provided that (A) no such reasonable prior notice shall be necessary if an Event of Default or Potential Event of Default is continuing or if special circumstances so require, and (B) in the case of the CAO, such access shall
be for purpose of carrying out CAO’s role.
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|
(i)
|
all Taxes (including stamp taxes, value-added taxes, transfer taxes), assessments, governmental charges, fees, expenses, or other charges payable on, or in connection with, the execution, issue, delivery, registration, or notarization, or for the legality, validity, or enforceability, of this Mortgage Agreement and any other documents related thereto, and provide the Mortgagee with copies of the official receipts for such payments;
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(ii)
|
all Taxes, assessments and governmental charges levied or assessed, and non-governmental fees, dues, charges or levies imposed, on the Assets, and provide the Mortgagee with copies of the official receipts for such payments; and
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(iii)
|
all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it; provided that each such Mortgagor shall not be required to pay any such Tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with the Accounting Principles;
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(g)
|
Insurance. The Mortgagors shall insure or cause to be insured at all times and at their own expense the Assets covered by or to be included in this Mortgage Agreement, to the Assets’ full insurable value, with responsible and reputable insurers acceptable to the Mortgagee, covering such risks as are usually carried by companies engaged in similar business (including insurance against fire, lightning, and earthquakes) or by companies owning similar properties in the area in which the Mortgagor operates and maintain such insurance in force until the Obligations shall have been paid in full. The Mortgagors shall endorse and assign in favor of the Mortgagee the corresponding insurance policy or policies under a "Simple Loss Payable Clause". In case the risk or risks insured against shall occur, the Mortgagee shall have the right and authority to demand and accept payment on such insurance policy or policies
and to apply the proceeds thereof to the payment of the Obligations; provided, that the loss or destruction of the Assets or any part thereof shall not release the Mortgagor from its liabilities hereunder. The Mortgagors shall make an annual report on the status and amounts of such insurance, and shall furnish the Mortgagee satisfactory evidence of payment of premiums for such insurance. Should the Mortgagor fail to procure insurance or to maintain such insurance in force during the existence of this Mortgage
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(h)
|
Additional Security in Case of Damage. If at any time during the existence of this Mortgage Agreement and so long as the Obligations or any part thereof are outstanding and unpaid, any Assets shall be lost, damaged, or suffer an appreciable depreciation in value, then the Mortgagee shall have the right to require the Mortgagor to give, within 10 Business Days from demand, additional security acceptable to the Mortgagee in accordance with the requirements set forth in Section 4.01(o) of the Loan Agreement.
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(i)
|
Expropriation. Should the Assets or any part thereof be condemned, seized, or otherwise appropriated or expropriated by the Philippine Government, any department, branch, subdivision, or instrumentality thereof, or by any province, city, municipality, or barangay, or by any Person duly authorized by law to acquire property by eminent domain, all moneys paid or payable on account or in consideration of such condemnation, seizure, appropriation, or expropriation of such Assets and/or any piece or pieces of real property or personal property given in exchange for the Assets so condemned, seized, appropriated, or expropriated shall be delivered to the Mortgagee from whomsoever they may be properly due and payable. The Mortgagors hereby agree that, in the event any such funds or properties should come into their possession, they shall deliver the same to the Mortgagee immediately. The Mortgagors further covenant and
bind themselves not to agree to any purchase price or exchange in consideration of the property so condemned, seized, appropriated, or expropriated without the previous written consent of the Mortgagee.
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(j)
|
SPML Land Action Plan. SPML Land shall adopt and implement each action item set forth in the SPML Land Action Plan attached as Annex I of the Loan Agreement and deliver to IFC documentary evidence of the completion of such action within the applicable deadline set forth therein.
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(k)
|
Compliance with Law. SPML Land shall comply in all material respects with all Applicable Law, statutes, regulations and orders of, and all applicable restrictions imposed by, all Authorities in respect of its Operations and the ownership of its property (including Applicable Law, statutes, regulations, orders and restrictions relating to environmental standards and controls).
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(a)
|
Sale or Disposition of Assets. The Mortgagors shall not sell, assign, transfer, alienate, encumber, lease, or otherwise dispose of or create any security interest on any of the Assets without consultation with and consent of the Mortgagee, to the extent permissible under Applicable Law. In the event that the Mortgagee consents to, and any Mortgagor proceeds with, such sale, assignment, alienation, encumbrance, lease, or otherwise, the Mortgagors shall assign or create a security interest over all the proceeds of any sale, assignment, transfer, alienation, lease, or disposition of the Assets or any unit therein to the Mortgagee as security for the Obligations;
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(b)
|
Transfer of Assets. The Mortgagors shall at no time remove or transfer any of the Assets from the premises where such Assets were installed, situated, or used at the time of the establishment of the Lien pursuant to this Mortgage Agreement, or from the place where such Assets shall be installed, situated, or used, as the case may be, at the time of the purchase or acquisition thereof by the relevant Mortgagor.
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(c)
|
Alteration or Demolition of Assets. The Mortgagors shall not, without the Mortgagee’s prior written consent, make any major or material alteration upon or demolish any Assets nor do or permit to be done upon the Assets anything that may impair the value thereof or the security intended to be established by virtue of this Mortgage Agreement;
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(d)
|
Liens on the Assets. The Mortgagors shall not create, incur, assume, or permit to exist any Lien, other than the Mortgage, on or with respect to the Assets;
|
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(e)
|
Use of the Assets. The Mortgagors shall not use or permit to be used the Assets other than for the intended purpose thereof and shall not use, maintain, operate, or occupy, or allow the use, maintenance, operation, or occupancy of any part of the Assets for any purpose which may be dangerous, unless safeguarded as required by law; violates any legal requirement; may constitute a public or private nuisance that could reasonably be expected to result in a Material Adverse Effect; or may render void, voidable, or cancelable, or increase the premium of, any insurance then in force with respect to the Asset or any part thereof.
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|
(a)
|
Covenant Default. Any Mortgagor defaults in the due performance of, observance of, or compliance with any covenant contained in this Mortgage Agreement, and such default remains unremedied for a period of 30 days from receipt by the relevant Mortgagor of notice from the Mortgagee or from the time any of the Mortgagors have knowledge of such default, whichever is earlier;
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(b)
|
Representation Default. Any statement, representation, or warranty made by any Mortgagor in this Mortgage Agreement or in any certificate, opinion, or document issued pursuant to or in connection with this Mortgage Agreement, proves to be incorrect, untrue, or misleading as of the time it was made or deemed to have been made;
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|
(c)
|
Security Default. The Liens created pursuant to this Mortgage Agreement are not or cease to be in full force and effect, or cease to be an adequate full security for IFC for any reason whatsoever;
|
|
(d)
|
Indenture Defaults. The Mortgage cannot be registered for any reason whatsoever; and the priority of the Lien or security interest granted by the Mortgage is impaired or the Mortgage ceases to be a first direct lien and mortgage of the first rank upon the Assets;
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|
(e)
|
License Default. Any Authorization, registration, or Authorization now or after the execution of this Agreement necessary to enable the Mortgagors to comply with their obligations under this Mortgage Agreement are modified, cancelled, withdrawn, or withheld and such modification, withdrawal or withholding is not cancelled or otherwise remedied within 30 days from its occurrence or imposition; and
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(f)
|
Expropriation Default. Any act, deed, or judicial or administrative proceeding in the nature of an expropriation, sequestration, confiscation, nationalization, intervention, acquisition, seizure, or condemnation of or with respect to the Assets, or any substantial portion thereof, is undertaken or instituted by any Governmental Authority and such act, deed, or proceeding continues undismissed or unstayed for a period of more than 60 days.
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(a)
|
Judicial Foreclosure. In case the Mortgagee opts for judicial foreclosure, the Mortgagors hereby consent to the appointment of the Mortgagee as receiver, without bond, to take charge and possession of the Assets at once.
|
|
(b)
|
Extra-Judicial Foreclosure. In case the Mortgagee opts for extrajudicial foreclosure, in addition to the remedies herein provided, the Mortgagee is hereby appointed attorney-in-fact of the Mortgagor, with full power and authority to take actual possession of the Assets, to sell or dispose of the same, to lease the same and collect rents therefor, to execute such bills of sale or other instruments, to make and pay for repairs or improvements thereon, and to perform any other act which the Mortgagee may deem convenient for the proper administration thereof.
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(c)
|
Delivery of Possession of Assets. Promptly upon receipt of notification that foreclosure proceedings have been commenced by the Mortgagee, the Mortgagor shall turn over possession of the Assets being foreclosed upon to the Mortgagee or as the Mortgagee shall otherwise direct; provided, that if any Mortgagor shall fail to turn over possession of any of such Assets as required hereunder, the Mortgagee shall be entitled and authorized to the extent permitted by Applicable Law to repossess the same by whichever means the Mortgagee shall determine, and to enter for that purpose the premises where such Assets may be located and transport them, at the expense of the Mortgagors, to the place otherwise determined by the Mortgagee for turning over possession thereof.
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(d)
|
Waiver of Benefits in General. Each of the Mortgagors agrees, to the full extent that it may lawfully so agree, that neither it nor anyone claiming through or under it, will set up, claim or seek to take advantage of any appraisal, valuation, stay, extension, period, redemption, or any other benefit under any Applicable Law in the locality where the Assets are situated, in order to prevent, hinder, or delay the enforcement or foreclosure of the Mortgage pursuant to this Mortgage Agreement, or the absolute sale of the Assets or any part thereof, or the final and absolute transfer or possession thereof, immediately after such sale, to the purchasers of any such Assets; and the Mortgagor, for itself and all who may at any time claim through or under it, hereby waives, to the fullest extent that it and
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(e)
|
Foreclosure Sale. In the event that the either of the Real Estate Mortgage or the Chattel Mortgage shall be foreclosed, whether judicially or extra-judicially, any sheriff conducting the sale at public auction, or where a direct sale is permitted by law, the Mortgagee or its duly appointed representative shall, at its option and in a commercially reasonable manner, sell the Assets individually, in groups, or as a whole lot.
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(a)
|
Sale of Assets. To effect the sale of any of the Assets owned by the Mortgagor in one or more transactions, and, to the extent permitted by Applicable Law, in such other manner as may reasonably be determined by such attorney-in-fact, including the direct sale without public auction of any such Assets at such price, and upon such terms as may be determined by such attorney-in-fact;
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(b)
|
Entry of Premises. To lawfully enter upon any premises where the Assets or any of them may be located without the need for a court order or other form of authority otherwise than upon the authority granted herein;
|
|
(c)
|
Possession of Assets. To take and retain actual possession and control of any such Assets as receivers without bond or otherwise, and transport any of them to any location as determined by such attorney-in-fact;
|
|
(d)
|
Repairs and Improvements. To make any reasonable repairs, additions, and improvements on and to the Assets owned by any Mortgagor at the expense of the Mortgagor as such attorney-in-fact shall deem proper or necessary;
|
|
(f)
|
Conclusion of Agreements. To conclude any agreement and collect any monies under such agreements or otherwise due to the Mortgagor in respect of, or generated through the usage of, any of the Assets;
|
|
(g)
|
Exercise of Rights. To exercise any of the rights of either of the Mortgagors arising under or in connection with this Mortgage Agreement and the Mortgage, and to designate or delegate to another Person in substitution of such attorney-in-fact, the exercise of such rights of the Mortgagor, and under such terms as such attorney-in-fact shall deem proper or necessary;
|
|
(h)
|
Collection of Monies. To collect, claim, and receive all monies in accordance with this Mortgage Agreement and avail of all benefits that accrue, and that may
|
|
(i)
|
Institution of Suits. To institute or defend, and maintain such suits and proceedings as such attorney-in-fact shall deem expedient to prevent any impairment of the Assets or to preserve and protect the interest therein of the Mortgagee;
|
|
(j)
|
Execution of Deed of Sale. To execute and deliver such deeds of conveyance or sale as may be necessary or proper for the purpose of conveying full title and ownership, free from any claims and rights of any Mortgagor, to the Assets, after foreclosure thereof; and
|
|
(k)
|
Other Acts. In general, to sign such agreements and documents and perform such acts and things required, necessary or, in the opinion of such attorney-in-fact, advisable, to fully enforce the rights of the Mortgagee under this Mortgage Agreement and the Mortgage.
|
|
(a)
|
execute and deliver to the Mortgagors the proper instrument (in substantially the form in Exhibit “B” (Form of Release of Mortgage)) acknowledging the termination of this Mortgage Agreement; and
|
|
(b)
|
duly assign, transfer, and deliver to the Mortgagors (without recourse and without any representation or warranty), free from interests of the Mortgagee or any Lien granted hereunder, such of the Assets as may be in possession or subject to the interests of the Mortgagee and has not theretofore been sold or otherwise applied or released pursuant to this Mortgage Agreement, together with (i) such notices to third parties as may be necessary to countermand any notices previously sent to them pursuant hereto, and (ii) such other documentation as shall be reasonably requested by the Mortgagors to effect or confirm the termination and release of the Liens granted hereunder on the Assets.
|
|
(b)
|
any assertion of, or failure to assert, or delay in asserting, any right, power, or remedy against any of the Mortgagors, or in respect of any other security for any of the Obligations;
|
|
(c)
|
any modification, amendment, waiver, or amplification of the provisions of the Loan Agreement, the Financing Documents, or this Mortgage Agreement or of any other agreements between either of the Mortgagors, on one hand, and IFC, on the other hand;
|
|
(e)
|
the dissolution, liquidation, reorganization, or any other alteration of the legal structure of any of the Mortgagors;
|
|
(g)
|
any other circumstance (other than complete, unconditional, and irrevocable payment and performance by the Mortgagors of all the Obligations) which might otherwise constitute a legal or equitable discharge of a security.
|
SunPower Philippines Manufacturing Ltd.
|
||
By:
|
||
Name:
|
||
Position:
|
Attorney-in-Fact
|
|
SPML Land, Inc.
|
||
By:
|
||
Name:
|
||
Position:
|
President
|
|
International Finance Corporation
|
||
By:
|
/s/ Jesse O. Ang
|
|
Name:
|
||
Position:
|
Resident Representative
|
/s/ signature unintelligible
|
SunPower Philippines Manufacturing Ltd.
|
||
By:
|
||
Name:
|
||
Position:
|
Attorney-in-Fact
|
|
SPML Land, Inc.
|
||
By:
|
||
Name:
|
||
Position:
|
President
|
|
International Finance Corporation
|
||
By:
|
/s/ Jesse O. Ang
|
|
Name:
|
||
Position:
|
Resident Representative
|
/s/ signature unintelligible
|
Name
|
Community Tax Certificate
No. & Passport No.
|
Issued at/on
|
||
SunPower Philippines Manufacturing Ltd.
represented by:
|
||||
SPML Land, Inc.
represented by:
|
||||
International Finance Corporation
represented by:
|
1.
|
The Premises, which consist of SPML Land’s real property consisting of a parcel of land covered by Transfer Certificate of Title No. T-117960 (formerly T-103232) located at the Municipality of Tanauan, Province of Batangas with an area of 60,000 square meters, and the building upon such parcel of land covered by Declaration of Real Property No. 047-01263 (Property Identification No. 024-29-047-12-0010B1).
|
2.
|
A parcel of land covered by Transfer Certificate of Title No. T-132528 and Tax Declaration of Real Property No. 047-01260 (Property Identification No. 024-29-047-12-0011) located at the Municipality of Tanauan, Province of Batangas with an area of 20,000 square meters.
|
3.
|
A parcel of land covered by Transfer Certificate of Title No. T-132527 and Tax Declaration No. 047-01261 (Property Identification No. 024-29-047-12-0047) located at the Municipality of Tanauan, Province of Batangas with an area of 6,456 square meters.
|
4.
|
The Lease Rights of SPML over the Premises under the Contract of Lease between SPML and SPML Land dated August 2006 (Doc. No. 90, Page No. 18, Book No. IX, Series of 2006 dated 5 September 2006 of Notary Public Basilio B. Pooten for Sta., Rosa, Laguna).
|
5.
|
The Mortgagors’ rights to possess or otherwise use the Premises, including any easements or rights of way pertaining thereto, pursuant to any other document or agreement granting such right to the Mortgagors.
|
6.
|
All machinery, equipment, and other assets owned by either of the Mortgagors and located in the Premises attached to the Present Real Assets in such a way so as to become immovable by incorporation or by destination.
|
1.
|
The Lease Rights of SPML arising from any renewal or extension of the Contract of Lease between SPML and SPML Land dated August 2006 (Doc. No. 90, Page No. 18, Book No. IX, Series of 2006 dated 5 September 2006 of Notary Public Basilio B. Pooten for Sta., Rosa, Laguna).
|
2.
|
The Lease Rights of SPML over the Premises covered by any contract replacing the Contract of Lease between SPML and SPML Land dated August 2006 (Doc. No. 90, Page No. 18, Book No. IX, Series of 2006 dated 5 September 2006 of Notary Public Basilio B. Pooten for Sta., Rosa, Laguna) that may be entered into between SPML and SPML Land regarding the lease granted by SPML Land to SPML.
|
3.
|
Improvements owned by any of the Mortgagors which may be made on the Real Assets after the date of this Mortgage Agreement.
|
4.
|
Property owned by any Mortgagor of every nature and description taken in exchange, substitution, or replacement of the Real Assets after the date of this Mortgage Agreement.
|
5.
|
All rights, benefits, loss proceeds, indemnities, insurance payments, and other payments received by or due to any of the Mortgagors in lieu of, or inherent to, or in connection with, the Real Assets.
|
6.
|
All machinery, equipment, and other assets owned or acquired by either of the Mortgagors and located in, on, or upon the Real Assets (regardless of whether initially covered by the Chattel Mortgage) which are at any time in the future attached to such property so as to become immovable by incorporation or by destination by reason of their attachment to the Real Assets.
|
7.
|
All of the Mortgagors’ rights, title, and interests in, to and under insurance contracts, to the extent that such rights, title, and interests constitute Real Assets.
|
|
|
Oracle
|
|
|
Acquisition
|
Asset
|
|
Description
|
Date
|
Number
|
Class
|
Printer 1
|
25-Oct-07
|
437
|
Mfg. Eqt
|
Metal Anneal
|
25-Oct-07
|
438
|
Mfg. Eqt
|
Automation 2
|
25-Oct-07
|
439
|
Mfg. Eqt
|
Etch Tool #2
|
25-Oct-07
|
440
|
Mfg. Eqt
|
Etch Tool #3
|
25-Oct-07
|
441
|
Mfg. Eqt
|
Sputter Tool
|
25-Oct-07
|
442
|
Mfg. Eqt
|
Wafer Transfer System
|
25-Oct-07
|
443
|
Mfg. Eqt
|
Automated Tester
|
25-Oct-07
|
444
|
Mfg. Eqt
|
Direct Feeder
|
25-Oct-07
|
445
|
Mfg. Eqt
|
Back Side Tool
|
28-Mar-08
|
446
|
Mfg. Eqt
|
Back Side Automation
|
28-Mar-08
|
447
|
Mfg. Eqt
|
Inspection System 1
|
28-Mar-08
|
448
|
Mfg. Eqt
|
Inspection System 2
|
28-Mar-08
|
449
|
Mfg. Eqt
|
Inspection System 3
|
28-Mar-08
|
450
|
Mfg. Eqt
|
Printer 3
|
28-Mar-08
|
451
|
Mfg. Eqt
|
Printer 2
|
28-Mar-08
|
452
|
Mfg. Eqt
|
Printer 1
|
25-Mar-09
|
2022
|
Mfg. Eqt
|
Printer 1
|
23-Jul-09
|
5631
|
Mfg. Eqt
|
Etch Tool #1
|
28-Mar-08
|
453
|
Mfg. Eqt
|
Deposition Tool # 1
|
28-Mar-08
|
454
|
Mfg. Eqt
|
Deposition Tool # 2
|
28-Mar-08
|
455
|
Mfg. Eqt
|
Etch Tool #2
|
28-Mar-08
|
456
|
Mfg. Eqt
|
Etch Tool #4
|
28-Mar-08
|
457
|
Mfg. Eqt
|
Etch Tool #3
|
28-Mar-08
|
458
|
Mfg. Eqt
|
Diffusion Banks
|
28-Mar-08
|
459
|
Mfg. Eqt
|
Elevator System
|
28-Mar-08
|
460
|
Mfg. Eqt
|
Frontside Tool
|
28-Mar-08
|
461
|
Mfg. Eqt
|
Printer 2
|
28-Mar-08
|
462
|
Mfg. Eqt
|
Sputter Tool
|
28-Mar-08
|
463
|
Mfg. Eqt
|
Metal Anneal
|
28-Mar-08
|
464
|
Mfg. Eqt
|
Direct Feeder
|
28-Mar-08
|
465
|
Mfg. Eqt
|
Etch Tool
|
28-Mar-08
|
466
|
Mfg. Eqt
|
Etch Tool Automation 2
|
28-Mar-08
|
467
|
Mfg. Eqt
|
Etch Tool Automation 1
|
28-Mar-08
|
468
|
Mfg. Eqt
|
Automated Tester
|
28-Mar-08
|
469
|
Mfg. Eqt
|
Wafer Transfer System
|
28-Mar-08
|
470
|
Mfg. Eqt
|
Printer 1
|
28-Mar-08
|
471
|
Mfg. Eqt
|
Inspection System 1
|
28-Mar-08
|
472
|
Mfg. Eqt
|
Inspection System 2
|
28-Mar-08
|
473
|
Mfg. Eqt
|
Inspection System 3
|
28-Mar-08
|
474
|
Mfg. Eqt
|
Printer 3
|
28-Mar-08
|
475
|
Mfg. Eqt
|
Automation 2
|
28-Mar-08
|
476
|
Mfg. Eqt
|
Back Side Tool
|
29-Jun-08
|
1105
|
Mfg. Eqt
|
Back Side Automation
|
29-Jun-08
|
1106
|
Mfg. Eqt
|
Printer 3
|
29-Jun-08
|
1109
|
Mfg. Eqt
|
Inspection System 1
|
29-Jun-08
|
1123
|
Mfg. Eqt
|
Inspection System 2
|
29-Jun-08
|
1124
|
Mfg. Eqt
|
Inspection System 3
|
29-Jun-08
|
1125
|
Mfg. Eqt
|
Printer 1
|
24-Jan-09
|
4373
|
Mfg. Eqt
|
Elevator System
|
25-Mar-09
|
4705
|
Mfg. Eqt
|
Back Side Tool
|
29-Jun-08
|
1107
|
Mfg. Eqt
|
Back Side Automation
|
29-Jun-08
|
1108
|
Mfg. Eqt
|
Sputter Tool
|
29-Jun-08
|
1110
|
Mfg. Eqt
|
Deposition Tool # 1
|
29-Jun-08
|
1111
|
Mfg. Eqt
|
Deposition Tool # 2
|
29-Jun-08
|
1112
|
Mfg. Eqt
|
Diffusion Banks
|
29-Jun-08
|
1113
|
Mfg. Eqt
|
Diffusion Banks
|
29-Jun-08
|
1114
|
Mfg. Eqt
|
Elevator System
|
29-Jun-08
|
1115
|
Mfg. Eqt
|
Metal Anneal
|
29-Jun-08
|
1116
|
Mfg. Eqt
|
Wafer Transfer System
|
29-Jun-08
|
1117
|
Mfg. Eqt
|
Etch Tool #1
|
29-Jun-08
|
1118
|
Mfg. Eqt
|
Etch Tool #3
|
29-Jun-08
|
1119
|
Mfg. Eqt
|
Automated Tester
|
29-Jun-08
|
1120
|
Mfg. Eqt
|
Automation 2
|
29-Jun-08
|
1121
|
Mfg. Eqt
|
Printer 2
|
29-Jun-08
|
1122
|
Mfg. Eqt
|
Printer 3
|
24-Aug-08
|
1149
|
Mfg. Eqt
|
Inspection Systems1~3
|
24-Aug-08
|
1217
|
Mfg. Eqt
|
Deposition Tool # 1
|
24-Aug-08
|
1186
|
Mfg. Eqt
|
Deposition Tool # 2
|
24-Aug-08
|
1187
|
Mfg. Eqt
|
Etch Tool #1
|
24-Aug-08
|
1306
|
Mfg. Eqt
|
Etch Tool #3
|
24-Aug-08
|
1309
|
Mfg. Eqt
|
Etch Tool
|
24-Aug-08
|
1839
|
Mfg. Eqt
|
Direct Feeder
|
24-Aug-08
|
1903
|
Mfg. Eqt
|
Diffusion Banks
|
24-Aug-08
|
2147
|
Mfg. Eqt
|
Elevator System
|
24-Aug-08
|
2350
|
Mfg. Eqt
|
Sputter Tool
|
24-Aug-08
|
1955
|
Mfg. Eqt
|
Etch Tool #4
|
24-Aug-08
|
1282
|
Mfg. Eqt
|
Etch Tool #2
|
24-Aug-08
|
1283
|
Mfg. Eqt
|
Metal Anneal
|
24-Aug-08
|
1397
|
Mfg. Eqt
|
Printer 2
|
24-Aug-08
|
2394
|
Mfg. Eqt
|
Back Side Tool
|
24-Aug-08
|
1470
|
Mfg. Eqt
|
Back Side Automation
|
24-Aug-08
|
1673
|
Mfg. Eqt
|
Automated Tester
|
24-Aug-08
|
2221
|
Mfg. Eqt
|
Printer 3
|
24-Aug-08
|
1147
|
Mfg. Eqt
|
Inspection System 1~3
|
24-Aug-08
|
1788
|
Mfg. Eqt
|
Automation
|
24-Aug-08
|
1491
|
Mfg. Eqt
|
Printer 3
|
28-Sep-08
|
3367
|
Mfg. Eqt
|
Wafer Transfer System
|
28-Sep-08
|
1471
|
Mfg. Eqt
|
Printer 3
|
28-Sep-08
|
3365
|
Mfg. Eqt
|
Etch Tool #1
|
28-Sep-08
|
2325
|
Mfg. Eqt
|
Etch Tool #3
|
28-Sep-08
|
2326
|
Mfg. Eqt
|
Sputter Tool
|
28-Sep-08
|
3504
|
Mfg. Eqt
|
Deposition Tool # 1
|
28-Sep-08
|
1615
|
Mfg. Eqt
|
Deposition Tool # 2
|
28-Sep-08
|
1665
|
Mfg. Eqt
|
Diffusion Banks
|
28-Sep-08
|
2529
|
Mfg. Eqt
|
Printer 2
|
28-Sep-08
|
2393
|
Mfg. Eqt
|
Automated Tester
|
28-Sep-08
|
2222
|
Mfg. Eqt
|
Automation
|
28-Sep-08
|
2552
|
Mfg. Eqt
|
Back Side Tool
|
28-Sep-08
|
1555
|
Mfg. Eqt
|
Printer 1
|
28-Sep-08
|
2500
|
Mfg. Eqt
|
Inspection System
|
28-Sep-08
|
3552
|
Mfg. Eqt
|
Inspection System AOI
|
24-Jan-09
|
1404
|
Mfg. Eqt
|
Etch Tool #1
|
26-Dec-08
|
2135
|
Mfg. Eqt
|
Deposition Tool # 1
|
26-Dec-08
|
2047
|
Mfg. Eqt
|
Deposition Tool # 2
|
26-Dec-08
|
2052
|
Mfg. Eqt
|
Etch Tool #3
|
26-Dec-08
|
2138
|
Mfg. Eqt
|
Frontside Tool
|
26-Dec-08
|
1496
|
Mfg. Eqt
|
Back Side Tool
|
26-Dec-08
|
3437
|
Mfg. Eqt
|
Printer 2
|
26-Dec-08
|
3557
|
Mfg. Eqt
|
Etch Tool #4
|
26-Dec-08
|
2134
|
Mfg. Eqt
|
Etch Tool #2
|
26-Dec-08
|
2137
|
Mfg. Eqt
|
Sputter Tool
|
26-Dec-08
|
2114
|
Mfg. Eqt
|
Metal Anneal
|
26-Dec-08
|
3619
|
Mfg. Eqt
|
Direct Feeder
|
26-Dec-08
|
2075
|
Mfg. Eqt
|
Etch Tool
|
26-Dec-08
|
2237
|
Mfg. Eqt
|
Printer 1
|
26-Dec-08
|
3436
|
Mfg. Eqt
|
Automated Tester
|
26-Dec-08
|
2220
|
Mfg. Eqt
|
Automated Tester
|
26-Dec-08
|
1480
|
Mfg. Eqt
|
Inspection System
|
26-Dec-08
|
3364
|
Mfg. Eqt
|
Printer 3
|
26-Dec-08
|
3561
|
Mfg. Eqt
|
Diffusion Banks
|
26-Dec-08
|
2553
|
Mfg. Eqt
|
Elevator System
|
26-Dec-08
|
4283
|
Mfg. Eqt
|
Automation
|
26-Dec-08
|
3382
|
Mfg. Eqt
|
Inspection System AOI
|
24-Jan-09
|
3863
|
Mfg. Eqt
|
Etch Tool Automation
|
25-Mar-09
|
1467
|
Mfg. Eqt
|
Direct Feeder
|
25-Mar-09
|
4745
|
Mfg. Eqt
|
Wafer Transfer System
|
25-Mar-09
|
3755
|
Mfg. Eqt
|
Inspection System
|
23-Apr-09
|
5641
|
Mfg. Eqt
|
Etch Tool #1
|
24-Jan-09
|
2136
|
Mfg. Eqt
|
Deposition Tool # 1
|
24-Jan-09
|
2048
|
Mfg. Eqt
|
Deposition Tool # 2
|
24-Jan-09
|
2053
|
Mfg. Eqt
|
Etch Tool #3
|
24-Jan-09
|
2139
|
Mfg. Eqt
|
Frontside Tool
|
24-Jan-09
|
1498
|
Mfg. Eqt
|
Back Side Tool
|
24-Jan-09
|
3438
|
Mfg. Eqt
|
Printer 2
|
24-Jan-09
|
3556
|
Mfg. Eqt
|
Sputter Tool
|
24-Jan-09
|
2115
|
Mfg. Eqt
|
Metal Anneal
|
24-Jan-09
|
3624
|
Mfg. Eqt
|
Automated Tester
|
24-Jan-09
|
1479
|
Mfg. Eqt
|
Inspection System
|
24-Jan-09
|
3562
|
Mfg. Eqt
|
Diffusion Banks
|
24-Jan-09
|
3615
|
Mfg. Eqt
|
Elevator System
|
24-Jan-09
|
4284
|
Mfg. Eqt
|
Automation
|
24-Jan-09
|
3378
|
Mfg. Eqt
|
Inspection System AOI
|
24-Jan-09
|
3871
|
Mfg. Eqt
|
Etch Tool Automation
|
25-Mar-09
|
1349
|
Mfg. Eqt
|
Inspection System
|
23-Apr-09
|
5657
|
Mfg. Eqt
|
Printer 3
|
23-Apr-09
|
5636
|
Mfg. Eqt
|
1.
|
Property owned by any Mortgagor of every nature and description taken in exchange, substitution, or replacement of the Chattels or otherwise acquired by any of the Mortgagors and used and/or located in the Premises.
|
2.
|
All rights, benefits, loss proceeds, indemnities, insurance payments, and other payments received by or due to any of the Mortgagors in lieu of, or inherent to, or in connection with, the Chattels.
|
3.
|
All machinery, equipment, and other assets which are covered by the Real Estate Mortgage, but are at any time in the future, for any reason, dismantled or removed or otherwise become mobilized.
|
4.
|
All of the Mortgagors’ rights, title, and interests in, to, and under insurance contracts, to the extent that such rights, title, and interests do not constitute Real Assets.
|
|
(a)
|
Official receipt from the appropriate Register of Deeds confirming the payment of the registration fees
|
|
(d)
|
(i)
|
Where a Real Estate Mortgage is contemplated by the relevant Mortgage Supplement and registered property is covered by the Real Estate Mortgage, either a certified true copy of the day book of the appropriate Register of Deeds showing the entry of the Mortgage or a certification from the Register of Deeds that the Mortgage has been entered in the day book
|
|
(ii)
|
Where a Real Estate Mortgage is contemplated by the relevant Mortgage Supplement and unregistered property is covered by the Real Estate Mortgage, either a certified true copy of the entry book for Act No. 3344 or a certification from the Register of Deeds that the Mortgage has been entered in the entry book for Act No. 3344
|
|
(e)
|
Original copy of the Mortgage Agreement with the Mortgage duly stamped by the appropriate Register of Deeds confirming the registration of the Real Estate Mortgage
|
|
(f)
|
Official Receipt of a Bureau of Internal Revenue associated agent bank for the payment of documentary stamp taxes on the Mortgage Loan Agreement
|
|
(a)
|
Official receipt of the appropriate Register of Deeds confirming the payment of the registration fees
|
|
(c)
|
Either a certified true copy of the registry for the Chattel Mortgages or a certification from the Register of Deeds that the Chattel Mortgage has been entered in the registry for Chattel Mortgages
|
|
(d)
|
Original copy of the Mortgage Loan Agreement with the Mortgage duly stamped by the appropriate Register of Deeds confirming the registration of the Chattel Mortgage
|
|
(e)
|
Official Receipt of a Bureau of Internal Revenue associated agent bank for the payment of documentary stamp taxes on the Mortgage Loan Agreement
|
|
(a)
|
Official receipt of the appropriate Register of Deeds confirming the payment of the registration fees
|
|
(c)
|
(i)
|
Where a Real Estate Mortgage is contemplated by the relevant Mortgage Supplement and registered property is covered by the Real Estate Mortgage, either a certified true copy of the day book of the appropriate Register of Deeds showing the entry of the Mortgage or a certification from the Register of Deeds that the Mortgage has been entered in the day book
|
|
(ii)
|
Where a Real Estate Mortgage is contemplated by the relevant Mortgage Supplement and unregistered property is covered by the Real Estate Mortgage, and either a certified true copy of the entry book for Act No. 3344 confirming registration of the relevant Mortgage Supplement or a certification from the Register of Deeds that the relevant Mortgage Supplement has been entered in the entry book for Act No. 3344
|
|
(iii)
|
Where a chattel mortgage is contemplated by the relevant Mortgage Supplement, either a certified true copy of the registry for the Chattel Mortgages or a certification from the Register of Deeds that the Chattel Mortgage has been entered in the registry for Chattel Mortgages
|
|
(d)
|
Original copy of the Mortgage Supplement duly stamped by the appropriate Register of Deeds confirming its registration as a Real Estate Mortgage and/or Chattel Mortgage
|
|
(e)
|
In the event that the amount secured under the Mortgage Agreement is increased by virtue of the Mortgage Supplement or the term of the Loan is increased under the Loan Agreement, an Official Receipt of a Bureau of Internal Revenue associated agent bank for the payment of documentary stamp taxes on the Mortgage Supplement or the Mortgage Loan Agreement
|
1.
|
Unless otherwise defined in this Mortgage Supplement, (i) capitalized terms shall have the meanings set forth in the Loan Agreement and the Mortgage Agreement unless the context otherwise requires, and (ii) the principles of construction set forth in the Loan Agreement and the Mortgage Agreement shall apply.
|
2.
|
The Mortgagors hereby confirm that (i) certain of the Assets identified and described as [Future Real Assets and/or Future Chattel, as may be applicable,] in the Mortgage Agreement have come into existence and/or have been acquired in ownership by a Mortgagor as of the date hereof (those certain assets to be herein called the “New Assets”), and (ii) the New Assets are now identified and more fully described in Schedule A to this Mortgage Supplement.
|
3.
|
The Mortgagors hereby acknowledge and agree (i) that the [Real Estate Mortgage and/or the Chattel Mortgage, as may be applicable], has been granted, created, established, and constituted on the New Assets in favor of Mortgagee and (ii) that such [Real Estate Mortgage and/or the Chattel Mortgage, as may be applicable,] are subject to the same provisions, terms, and conditions of the Mortgage Agreement as are applicable to the Mortgage on the [Present Real Assets and/or Present Chattel] thereunder, as fully and completely for all legal intents and purposes as if owned by the relevant Mortgagor on the date of execution of the Mortgage Agreement.
|
4.
|
The parties hereto confirm that the New Assets serve as security for payment of the Obligations to the extent of the amount stated in [Section 2.01(d)(Creation of Real Estate Mortgage) and/or Section 3.01(c)(Creation of Chattel Mortgage), as may be applicable] of the Mortgage Agreement, including interests, fees, and charges that may be due thereon.
|
5.
|
Each of the Mortgagors undertakes, at Mortgagors’ cost and expense, to register this Mortgage Supplement with the appropriate Registry of Deeds and, where necessary, other appropriate government agencies, in the Philippines in accordance with the Mortgage Agreement.
|
SunPower Philippines Manufacturing Ltd.
|
|
By:
|
|
Name:
|
|
Position:
|
|
SPML Land, Inc.
|
|
By:
|
|
Name:
|
|
Position:
|
|
International Finance Corporation
|
|
By:
|
|
Name:
|
|
Position:
|
_________________________
|
_________________________
|
SunPower Philippines Manufacturing Ltd.
|
||
By:
|
||
Name:
|
||
Position:
|
||
SPML Land, Inc.
|
||
By:
|
||
Name:
|
||
Position:
|
||
International Finance Corporation
|
||
By:
|
||
Name:
|
||
Position:
|
]]
|
Name
|
Community Tax Certificate
No. & Passport No.
|
Issued at/on
|
||
SunPower Philippines Manufacturing Ltd.
represented by:
|
||||
SPML Land, Inc.
represented by:
|
||||
International Finance Corporation
represented by:
|
International Finance Corporation
|
|
By:
|
|
Name:
|
|
Position:
|
This ‘10-Q’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 8/13/10 | 4 | ||
7/15/10 | ||||
For Period end: | 7/4/10 | |||
5/6/10 | 4 | |||
1/3/10 | 10-K, 10-K/A, 5, ARS, NT 10-K | |||
1/5/09 | ||||
9/26/08 | ||||
7/21/08 | 4 | |||
5/30/07 | 8-K | |||
10/11/06 | ||||
4/30/06 | ||||
1/1/05 | ||||
1/1/04 | ||||
8/13/03 | ||||
5/22/03 | ||||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/22/21 SunPower Corp. 10-K 1/03/21 154:23M |