SEC Info - Sunpower Corp - ‘10-K’ for 12/30/12

SEC Info℠

Home

Help

Please Sign In

Sunpower Corp – ‘10-K’ for 12/30/12 – ‘EX-10.98’

On: Friday, 2/22/13, at 7:37pm ET · As of: 2/25/13 · For: 12/30/12 · Accession #: 867773-13-12 · File #: 1-34166

  As Of               Filer                 Filing    For·On·As Docs:Size

 2/25/13  Sunpower Corp                     10-K       12/30/12   99:31M

Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                       HTML   1.87M 
 2: EX-10.34    Third Amendment to Credit Support Agreement         HTML     40K 
 3: EX-10.54    Sunpower Corporation Executive Quarterly Key        HTML     55K 
                Initiative Bonus Plan                                            
 4: EX-10.63    Mortgage Supplement No. 1                           HTML     49K 
 5: EX-10.64    Mortgage Supplement No. 2                           HTML     48K 
 6: EX-10.69    Second Amendment to Letter of Credit Facility       HTML     65K 
                Agreement                                                        
 7: EX-10.73    Third Amendment to Revolving Credit Agreement       HTML     94K 
 8: EX-10.94    Waiver Letter                                       HTML     46K 
 9: EX-10.96    Engineering, Procurement and Construction           HTML   1.16M 
                Agreement (Antelope Valley Solar Proje                           
10: EX-10.97    Engineering, Procurement and Construction           HTML   1.17M 
                Agreement (Antelope Valley Solar Proje                           
11: EX-10.98    Amendment No. 1 to Master Agreement                 HTML     47K 
12: EX-21.1     List of Subsidiaries                                HTML     30K 
13: EX-23.1     Consent of Independent Registered Public            HTML     28K 
                Accounting Firm                                                  
14: EX-23.2     Consent of Independent Registered Public            HTML     28K 
                Accounting Firm                                                  
15: EX-24.1     Power of Attorney                                   HTML     41K 
16: EX-31.1     Certification by Chief Executive Officer Pursuant   HTML     34K 
                to Rule 13A-14(A)/15D-14(A)                                      
17: EX-31.2     Certification by Chief Financial Officer Pursuant   HTML     34K 
                to Rule 13A-14(A)/15D-14(A)                                      
18: EX-32.1     Certification Furnished Pursuant to 18 U.S.C.       HTML     31K 
                Section 1350 as Adopted Pursuant T                               
71: R1          Document and Entity Information                     HTML     55K 
58: R2          Consolidated Balance Sheets                         HTML    172K 
69: R3          Consolidated Balance Sheets (Parenthetical)         HTML     52K 
73: R4          Consolidated Statements of Operations               HTML    180K 
92: R5          Consolidated Statements of Comprehensive Income     HTML     62K 
                (Loss)                                                           
60: R6          Consolidated Statement of Stockholders' Equity      HTML    127K 
68: R7          Consolidated Statements of Cash Flows               HTML    341K 
53: R8          The Company and Summary of Significant Accounting   HTML    119K 
                Policies                                                         
43: R9          Transactions with Total and Total S.A.              HTML     86K 
93: R10         Transfer of Entities Under Common Control           HTML    160K 
75: R11         Business Combinations                               HTML     39K 
74: R12         Sale of Discontinued Operations                     HTML     43K 
80: R13         Goodwill and Other Intangible Assets                HTML    111K 
81: R14         Balance Sheet Components                            HTML    241K 
78: R15         Fair Value Measurements                             HTML    126K 
82: R16         Restructuring                                       HTML    150K 
70: R17         Commitments and Contingencies                       HTML    141K 
72: R18         Equity Method Investments                           HTML     73K 
77: R19         Debt and Credit Sources                             HTML    234K 
99: R20         Foreign Currency Derivatives                        HTML    135K 
88: R21         Income Taxes                                        HTML    177K 
64: R22         Preferred Stock and Common Stock (Notes)            HTML     58K 
76: R23         Net Income (Loss) Per Share of Common Stock         HTML    137K 
66: R24         Stock-Based Compensation                            HTML    155K 
35: R25         Segment Information                                 HTML    206K 
89: R26         The Company and Summary of Significant Accounting   HTML    235K 
                Policies (Policies)                                              
96: R27         The Company and Summary of Significant Accounting   HTML     59K 
                Policies The Company and Summary of Significant                  
                Accounting Policies (Tables)                                     
48: R28         Transfer of Entities Under Common Control (Tables)  HTML    150K 
47: R29         Sale of Discontinued Operations (Tables)            HTML     40K 
51: R30         Goodwill and Other Intangible Assets (Tables)       HTML    103K 
52: R31         Balance Sheet Components (Tables)                   HTML    263K 
54: R32         Fair Value Measurements Fair Value Measurements     HTML    117K 
                (Tables)                                                         
31: R33         Restructuring (Tables)                              HTML    144K 
86: R34         Commitments and Contingencies (Tables)              HTML    103K 
62: R35         Equity Method Investments (Tables)                  HTML     43K 
65: R36         Debt and Credit Sources (Tables)                    HTML    157K 
38: R37         Foreign Currency Derivatives (Tables)               HTML    115K 
98: R38         Income Taxes (Tables)                               HTML    165K 
25: R39         Preferred Stock and Common Stock (Tables)           HTML     46K 
55: R40         Net Income (Loss) Per Share of Common Stock         HTML    126K 
                (Tables)                                                         
91: R41         Stock-Based Compensation (Tables)                   HTML    146K 
37: R42         Segment Information (Tables)                        HTML    202K 
46: R43         The Company and Summary of Significant Accounting   HTML     64K 
                Policies The Company and Summary of Significant                  
                Accounting Policies (Details)                                    
50: R44         Transactions with Total (Details)                   HTML    135K 
59: R45         Transfer of Entities Under Common Control           HTML    295K 
                (Details)                                                        
30: R46         Business Combinations (Details)                     HTML     31K 
42: R47         Sale of Discontinued Operations (Details)           HTML     56K 
27: R48         Goodwill and Other Intangible Assets - Goodwill     HTML     69K 
                (Details)                                                        
90: R49         Goodwill and Other Intangible Assets - Intangible   HTML     71K 
                Assets (Details)                                                 
36: R50         Balance Sheet Components (Details)                  HTML    303K 
87: R51         Fair Value Measurements (Details)                   HTML     57K 
39: R52         Fair Value Measurements Fair Value Measurements -   HTML     40K 
                Debt Derivatives (Details)                                       
56: R53         Fair Value Measurements - Assets and Liabilities    HTML     38K 
                Measured at Fair Value on a Non-Recurring Basis                  
                (Details)                                                        
26: R54         Restructuring (Details)                             HTML    111K 
29: R55         Commitments and Contingencies (Details)             HTML    158K 
49: R56         Commitments and Contingencies - Advances to         HTML     45K 
                Suppliers (Details)                                              
33: R57         Commitments and Contingencies - Future Financing    HTML     32K 
                Commitments (Details)                                            
94: R58         Commitments and Contingencies Commitments and       HTML     62K 
                Contingencies - Advances From Customers (Details)                
61: R59         Equity Method Investments (Details)                 HTML    114K 
79: R60         Debt and Credit Sources (Details)                   HTML    393K 
41: R61         Debt and Credit Sources - Convertible Debenture     HTML    157K 
                and Related Transactions (Details)                               
44: R62         Foreign Currency Derivatives (Details)              HTML     52K 
85: R63         Foreign Currency Derivatives - Net Gain (Loss)      HTML     57K 
                (Details)                                                        
83: R64         Income Taxes (Details)                              HTML    219K 
63: R65         Income Taxes - Operating Loss Carryforwards         HTML     37K 
                (Details)                                                        
84: R66         Income Taxes - Tax Holidays (Details)               HTML     39K 
40: R67         Preferred Stock and Common Stock (Details)          HTML     44K 
67: R68         Net Income (Loss) Per Share of Common Stock         HTML    115K 
                (Details)                                                        
95: R69         Net Income (Loss) Per Share of Common Stock -       HTML     51K 
                Anti-Dilutive Securities (Details)                               
28: R70         Stock-Based Compensation (Details)                  HTML    160K 
34: R71         Segment Information (Details)                       HTML    108K 
57: R72         Segment Information - Major Customer (Details)      HTML     28K 
97: XML         IDEA XML File -- Filing Summary                      XML    141K 
45: EXCEL       IDEA Workbook of Financial Reports (.xls)            XLS   4.47M 
19: EX-101.INS  XBRL Instance -- spwr-20121230                       XML   6.25M 
21: EX-101.CAL  XBRL Calculations -- spwr-20121230_cal               XML    404K 
22: EX-101.DEF  XBRL Definitions -- spwr-20121230_def                XML   1.52M 
23: EX-101.LAB  XBRL Labels -- spwr-20121230_lab                     XML   3.40M 
24: EX-101.PRE  XBRL Presentations -- spwr-20121230_pre              XML   1.86M 
20: EX-101.SCH  XBRL Schema -- spwr-20121230                         XSD    310K 
32: ZIP         XBRL Zipped Folder -- 0000867773-13-000012-xbrl      Zip    558K

‘EX-10.98’ — Amendment No. 1 to Master Agreement

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

<! C: C:

ex10_98x12302012

EXHIBIT 10.98

AMENDMENT NO. 1 TO

MASTER AGREEMENT

This AMENDMENT NO. 1 dated as of December 20, 2012 to a certain MASTER AGREEMENT, dated as of December 23, 2011 (this “Agreement”), is made by and among SunPower Corporation, a Delaware company (“SunPower”), Total Gas & Power USA, SAS, a société par actions simplifiée organized under the laws of the Republic of France (“Total G&P”), and Total S.A., a société anonyme organized under the laws of the Republic of France (the “Guarantor”). Capitalized terms used herein and not otherwise defined herein, shall have the meaning ascribed to such terms in the Master Agreement.

W I T N E S S E T H:

WHEREAS, by the terms of Clause 1.7(ii) of the Master Agreement, the parties agreed that the affiliated companies of the Guarantor would endeavor to develop a multi megawatt project in a high DNI (e.g. Middle East) country with SunPower's C7 product;

WHEREAS, SunPower and Guarantor have agreed that their common interest in C7 technology project development would be best promoted by the development of a number of small scale demonstration projects each of which would aim to have the effect of demonstrating to potential investors and customers the attractiveness and competitiveness of the C7 technology (each a “C7 Demonstration Project”);

WHEREAS, the parties have agreed to an overall budget of US$ 2.5 million for the 2013 calendar year corresponding to up to ten (10) C7 Demonstration Projects, representing cumulatively around 2 megawatts of peak power generation capacity;

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, SunPower, Total G&P and Guarantor hereby agree as follows:

Section 1 Demonstration Projects. The parties agree that each project shall have the objective of demonstrating to a potential investor or significant customer, on a demonstration facility scale, the attractiveness and competitiveness of the C7 technology. The parties further agree that the maximum number of such projects shall be ten (10), that the cumulative cost to Total G&P of participating in such C7 Demonstration Projects shall be not more than US$ 2.5 million, and that the commitments to supply, build and operate shall be entered into in 2013, unless otherwise agreed by the Parties.

Section 2 Amendments. Clause 1.7 (ii) of the Master Agreement is hereby amended as follows:

“(ii) develop up to ten (10) C7 Demonstration Projects representing cumulatively approximately 0,25 megawatts of peak power generation capacity at a total cost to Total G&P of not more than US$ 2.5 million located in high DNI countries (including the Middle East), provided, however, that the agreements with third parties creating binding commitments to supply, build and operate such C7 Demonstration Projects shall be entered into on or before December 31, 2013, unless

otherwise agreed.”

Clause 3.1 is hereby amended to insert the following new definition:

““C7 Demonstration Project” means a small scale solar power generation project using SunPower's C7 technology which aims to have the effect of demonstrating to potential investors and/or significant customers the attractiveness and competitiveness of the C7 technology.”

Section 3.2 Terms Generally; Interpretation. Except to the extent that the context otherwise requires, the terms of this Amendment No.1 shall be shall be understood and interpreted in accordance with the Master Agreement.

Section 3.3 Notices. All notices and other communications hereunder shall be delivered in accordance with the Master Agreement.

Section 3.4 Severability. In the event that any provision of this Amendment No.1, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Amendment No.1 will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such illegal, void or unenforceable provision of this Amendment No.1 with a legal, valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.

Section 3.5 Entire Agreement. This Amendment No. 1 and the Master Agreement and the agreements, documents, instruments and certificates among the parties hereto as contemplated by or referred to herein, including the Transaction Documents constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Each party hereto agrees that neither SunPower, on the one hand, nor Total G&P or the Guarantor, on the other hand, makes any representations or warranties, express or implied, whatsoever, including as to the accuracy or completeness of any other information, made (or made available) by itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Amendment No.1 or the transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other's Representatives of any documentation of any other information with respect to any one or more of the foregoing; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Amendment No.1, nothing in this Amendment No.1 shall relieve any party hereto for liability arising out of fraud or intentional misrepresentation.

Section 3.6 Assignment. Neither this Amendment No. 1 Agreement nor any right, interest or obligation under it may be assigned or delegated by any party to the Master Agreement by operation of law or otherwise without the prior written consent of the other parties to this Amendment No.1 and any attempt to do so will be void.

Section 3.7 No Third-Party Beneficiaries. This Amendment No.1 is for the sole benefit of the parties hereto and their permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Amendment No.1.

Section 3.8 Governing Law. This Amendment No.1 shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.

Section 3.9 Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Amendment No.1 were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages. It is accordingly agreed that, in addition to any other remedy to which they are entitled at law or in equity, the parties hereto agree that, in the event of any breach or threatened breach by the SunPower, on the one hand, or Total G&P or the Guarantor, on the other hand, of any of their respective covenants or obligations set forth in this Amendment No.1, SunPower, on the one hand, and Total G&P or the Guarantor, on the other hand, shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Amendment No.1 or to enforce compliance with, the covenants and obligations of the other under this Amendment No.1. SunPower, on the one hand, and Total G&P or the Guarantor, on the other hand hereby agree not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Amendment No.1 by such party (or parties), and to specifically enforce the terms and provisions of this Amendment No.1 to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party (or parties) under this Amendment No.1. The parties hereto further agree that (a) by seeking the remedies provided for in this Section 3.9, a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Amendment No.1 (including monetary damages) in the event that this Amendment No.1 has been terminated or in the event that the remedies provided for in this Section 3.9 are not available or otherwise are not granted, and (b) nothing set forth in this Section 3.9 shall require any party hereto to institute any proceeding for (or limit any party's right to institute any proceeding for) specific performance under this Section 3.9 prior or as a condition to exercising any termination right (and pursuing damages after such termination), nor shall the commencement of any Legal Proceeding pursuant to this Section 3.9 or anything set forth in this Section 3.9 restrict or limit any party's right to terminate this Amendment No.1 in accordance the express terms set forth herein or pursue any other remedies under this Amendment No.1 that may be available then or thereafter.

Section 3.10 Other Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

Section 3.11 Consent to Jurisdiction. Each of the parties hereto irrevocably consents and submits itself and its properties and assets to the exclusive jurisdiction and venue in any state court within the State of Delaware (or, if a state court located within the State of Delaware declines to accept jurisdiction over a particular matter, any court of the United States located in the State of Delaware) in connection with any matter based upon or arising out of this Amendment No.1 or the transactions contemplated hereby, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such Persons and waives and covenants not to assert or plead any objection which such Person might otherwise have to such jurisdiction, venue and process. Each party hereto hereby agrees not to commence any Legal Proceedings relating to or arising out of this

Amendment No.1 or the transactions contemplated hereby in any jurisdiction or courts other than as provided herein.

Section 3.12 Waiver Of Jury Trial. EACH OF SUNPOWER, TOTAL G&P AND GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE MASTER AGREEMEBNT AS AMENDED BY THIS AMENDMENT NO.1 OR THE ACTIONS OF SUNPOWER, TOTAL G&P OR GUARANTOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

Section 3.13 Counterparts. This Amendment No.1 may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or by electronic delivery in Adobe Portable Document Format or other electronic format based on common standards will be effective as delivery of a manually executed counterpart of this Amendment No.1.

IN WITNESS WHEREOF, the undersigned have caused this Amendment No.1 to be executed by their respective duly authorized officers to be effective as of the date first above written.



TOTAL GAS & POWER USA, SAS
By:	/s/ *Arnaud Chaperon*
	Name:	Arnaud Chaperon
	Title:	President
TOTAL S.A.
By:	/s/ *Bernard Clement*
	Name:	Bernard Clement
	Title:	Senior Vice President, Business Operations, New Energies

SUNPOWER CORPORATION
By:	/s/ *Thomas H. Werner*
	Name:	Thomas H. Werner
	Title:	Chief Executive Officer

Dates Referenced Herein and Documents Incorporated by Reference

This ‘10-K’ Filing	Date	Other Filings

	12/31/13	SD
Filed as of:	2/25/13	IRANNOTICE, S-8
Filed on:	2/22/13	4
For Period end:	12/30/12	10-K/A
	12/23/11	3, 4, 8-K, PREM14C, SC 13D/A
		List all Filings

4 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/22/21  SunPower Corp.                    10-K        1/03/21  154:23M
 8/28/13  SEC                               UPLOAD¶    10/10/17    1:76K  SunPower Corp.
 7/23/13  SEC                               UPLOAD¶    10/10/17    1:139K SunPower Corp.
 6/21/13  SEC                               UPLOAD¶    10/10/17    1:163K SunPower Corp.

↑Top

Filing Submission 0000867773-13-000012 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)