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

SUNPOWER MALAYSIA MANUFACTURING SDN. BHD. (Company No: 824246-W) a company incorporated in Malaysia under the Companies Act 1965 and having its registered address at Level 41 – Suite B, Menara Maxis, Kuala Lumpur City Centre, 50088  Kuala Lumpur (hereinafter referred to as “the Assignor”) of the one part;

(2)

GOVERNMENT OF MALAYSIA, for this purpose being represented by the Ministry Of Finance having its address at Kompleks Kementerian Kewangan, No. 5, Persiaran Perdana, Precinct 2, 62592 Putrajaya (hereinafter referred to as “the Assignee”) of the other part.

A.  

Pursuant to a Facility Agreement (hereinafter referred to as the “Facility Agreement”) entered into by the Parties on even date, the Assignee has agreed to make available to the Assignor the sum of Ringgit One Billion (RM1,000,000,000.00) only (hereinafter referred as “the Facility”) for the purposes specified in the Facility Agreement.

B.  

By the terms of the Facility Agreement, it was agreed between the Assignee and the Assignor that this Deed shall form part of the security to the Facility under the Facility Agreement.

 

1.1

Unless the context otherwise requires and save as specifically defined in this Deed, words and expression in the Facility Agreement shall have the same meanings when used in this Deed.

 

“Assigned Sum”

means all present and future sums, rights, title and interest of the Assignor in and to all moneys standing to the credit of the Special Loan Account or to be paid into or for the credit of the Special Loan Account pursuant to Clause 3 of this Deed;

 

“Security Account Bank”

means Malayan Banking Berhad;

 

 “Special Loan Account”

means the account opened and maintained by the Assignor with the Security Account Bank under account number *** pursuant to and in accordance with this Deed.

(a)  

any references to any statute shall be a reference to that statute as amended or re-enacted from time to time;

(b)  

references to Clauses and Schedules shall unless otherwise expressly provided be references to Clauses and Schedules to this Deed;

(c)  

the headings are for ease of reference only;

(d)  

any references to the singular includes the plural and vice versa;

(e)  

any references to the masculine gender includes the feminine and vice versa;

(f)  

the schedules and the annexures to this Deed (if any) are to be read and construed as essential parts of this Deed.

 

2.1

The Assignor as the beneficial owner of the Special Loan Account hereby agrees to assign absolutely to the Assignee the Assigned Sum for the purpose of securing payment of the Indebtedness subject to the terms and conditions of this Deed. Save and except as expressly provided above, the Assignee shall have no obligation of any kind whatsoever in relation to the obligations or be under any liability whatsoever.

 

2.2

The Assignor shall be entitled at its own costs and expenses, subject to the written consent by the Assignee, to obtain a discharge and release of this Deed at any time upon repayment of the Indebtedness to the Assignee.

 

3.1

The Assignor has opened the Special Loan Account with the Security Account Bank and such Special Loan Account shall be operated by one (1) authorized signatory of the Assignee and one (1) authorized signatory of the Assignor. Both Parties shall inform the other Party of their respective nominated signatories before they are appointed. The Party nominating a signatory shall be allowed to change the signatory so appointed from time to time, provided always that such Party shall provide the other Party with prior written notice.

 

3.2

Upon the execution of this Deed, the Assignor shall issue the notice of assignment to the Security Account Bank in the form set out in Schedule 1 hereto and shall send a copy of the same to the Assignee. The Assignor shall procure the Security Account Bank to notify the Assignor and the Assignee of the acceptance of such notice of assignment within fourteen (14) days from the date of receipt of such notice.

 

3.3

The transactions involving the Special Loan Account are as follows:

(a)  

(i)  

payment of the funds to be received by the Assignor under the Facility from time to time in accordance with the terms specified in the Facility Agreement; and

(ii)  

the scheduled repayment amounts more particularly set out in Clause 7.2 of the Facility Agreement.

(b)  

 

(i)

Subject to Clause 3.6(b) herein, for so long as any amounts are payable by the Assignor to the Lender under this Agreement, the Assignor may make withdrawal from the Special Loan Account for the purpose of the Project at any time provided that the Assignor has submitted to MIDA a Loan Withdrawal Notice (in the form as set out in Schedule 8) together with a certificate of payment (in the form as set out in Schedule 7) for withdrawal from the Special Loan Account together with the cheque(s) for such withdrawal signed by the Assignor’s signatory. The Assignee shall, within seven (7) days of the receipt of the certificate of payment duly certified by MIDA, sign and return the cheque(s) to the Assignor, for the withdrawal of funds from the Special Loan Account provided that in any event the Assignee shall, within fourteen (14) days of the delivery by the Assignor of the certificate of payment to MIDA, sign and return the cheque(s) to the Assignor, for the withdrawal of funds from the Special Loan Account.

 

(ii)

Subject to Clause 7.2 of the Facility Agreement, the Assignee hereby agrees that the Assignor is permitted to withdraw any unutilized amounts for the purposes of repayment in accordance with the Repayment Schedule.

 

3.4

The Assignor shall submit the monthly bank statements in relation to the Special Loan Account for any month to the Assignee within thirty (30) days from the last day of that month.

 

3.5

The Assignor shall manage the Special Loan Account in accordance with the terms and conditions contained in this Deed until the Indebtedness is fully paid, settled and discharged.

(a)  

that the Assignor shall not and has never assigned or charged the Special Loan Account  in favour of any third party, and the Assignor shall not without the prior written consent of the Assignee sell, assign, charge or mortgage the Special Loan Account;

(b)  

that the Assignor  shall do or carry out every request or instruction of the Assignee from time to time for the purpose of effecting this Deed and all rights of the Assignee herein;

(c)  

that the Assignor at any time and from time to time, shall do and fully comply with all requests of the Assignee to forward all relevant instruments, documents and records required to the Assignee to enable the Assignee to obtain full benefits under this Deed;

(d)  

that in the event any claims or remedies intended to be assigned under this Deed is invalid or unenforceable by the Assignee, the Assignor shall make the necessary claims and remedies under its own name in respect of the Assigned Sum and shall immediately deliver whatever monies received by the Assignor to the Assignee and until the said monies are delivered  to the Assignee, the same shall be kept in trust in favour of the Assignor;

(e)  

that the Assignor has and shall ensure and shall carry out all its obligations under any contract between the Assignor and the Security Account Bank relating to the Special Loan Account and shall not do or omit any act which will result in the Security Account Bank terminating the said contract; and

 

         (f)

that the Assignor shall not, without the prior written consent of the Assignee first having been obtained, agree to amend, vary or modify any contract relating to the Special Loan Account between the Assignor and the Security Account Bank or to release the Security Account Bank from any obligation or to waive any breach of contract, or to allow any act or negligence of the Security Account Bank which shall cause breach of contract or agree to any claims caused by or relevant to any contract between the Assignor and the Security Account Bank relating to Special Loan Account.

 

6.1  

Without prejudice to the other provisions under this Deed, this Deed shall be enforceable immediately upon the declaration of an Events of Default under Clause 12 of the Facility Agreement and the Assignee shall automatically have the right to enforce all of its rights and powers under the laws, the Facility Agreement and this Deed without any notice or consent of the Assignor.

6.2  

At any time upon the enforcement of the security hereby created:

(a)  

the Assignee shall have the right to give notice to the Security Account Bank in accordance with paragraph (iii) of the notice of the assignment which has been delivered to the Security Account Bank as described in Clause 4.1; and/or

(b)  

the Assignee shall have the right to utilize all or part of the Assigned Sum to settle the Indebtedness.

8.1  

Without prejudice to any provision to the contrary in this Deed, the Assignor shall still have the obligation in respect of any contract between the Assignor and the Bank in relation to the Special Loan Account to comply and fulfill all its obligations therein. The Assignee shall not have any obligations or liabilities relating to any contract between the Assignor and the Bank pursuant to the Special Loan Account specifically because of this Deed, and it is not required or obligated in any way whatsoever to comply with and fulfill any obligation of the Assignor relating to any contract between the Assignor and the Bank pursuant to the Special Loan Account or to make any payment, or to make any enquiry on any payment already made, or implementation of any obligation relating to any contract between the Assignor and the Bank pursuant to the Special Loan Account or to make any claims, or commence any action to collect any monies, or to enforce any rights or advantage which has been assigned to the Assignee in accordance with the terms of this Deed or in relation to any rights of the Assignee.

8.2  

The Assignor hereby agrees to indemnify and hold the Assignee harmless from all costs, claims, damages, liabilities and expenses (including the legal cost) reasonably and directly incurred by the Assignee howsoever caused from this Deed or the rights which have been assigned to the Assignee in accordance with this Deed.

9.1  

The Assignor hereby by way of security irrevocably appoints the Assignee to be its attorney and on its behalf and in its name or otherwise, upon this Deed becoming enforceable in accordance with Clause 6.1, to execute and do all such assurance, acts and things which the Assignor ought to do under the covenants and provisions contained in this Deed generally in its name or otherwise and on its behalf to exercise all or any of the powers, authorities and discretions conferred by or pursuant to this Deed on the Assignor and (without prejudice to the generality of the foregoing) to seal and deliver and otherwise perfect any deed, assurance, agreement, instrument or act which it or he may deem proper in  or for the purpose of exercising any of such powers, authorities and discretions.

9.2  

The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney as is mentioned in sub-clause (1) of this Clause 9 shall do or purport to do in the lawful exercise of all or any of the powers, authorities and discretion referred to in such sub-clause.

 

11.1

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

 

11.2

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

(a)  

free from any prohibition or condition;

(b)  

free from and not subject to (except as otherwise imposed by laws) any set-off or provisions relating to any tax; and

(c)  

without any set-off or provision (except as otherwise imposed by laws) on the account from any bank charges or commission whatsoever.

/s/ DATUK LATIFAH BT. DATUK ABU MANSOR 

(i)

pursuant to a Deed of Assignment dated [                ] (the “Deed”) between us (the “Assignor”) and the Government of Malaysia (the “Assignee”) and as security for our indebtedness to the Assignee under the Facility Agreement, we have agreed to assign to the Assignee all our present and future sums, rights, title and interest in and to all moneys standing to the credit of the Special Loan Account or to be paid into or for the credit of the Special Loan Account according to the terms specified in the Deed;

(ii)  

as long as the Deed has not been enforced, you are authorised and directed to allow us to make withdrawals in accordance with the authorized mode of operation of the Special Loan Account as provided by us to you ;

(iii)  

only after the Deed has been enforced as a result of an event of default under the Facility Agreement, you are authorised and directed to pay the Assigned Sum to the Assignee or otherwise act in accordance with any directions by the Assignee, and thereafter agree to accept and recognise any notice in writing to the Assignee informing you that the said Deed has been so enforced;

(iv)  

all powers and directions in the notice therein is not to be nullified or amended by us without securing the written agreement from the Assignee; and

(v)  

unless otherwise defined herein, terms in the Deed shall have the same meanings when used herein.

 

(ii)

SunPower Malaysia Manufacturing Sdn. Bhd.