DEPOSIT ACCOUNT PLEDGE AGREEMENT (SPI Reserve Account Pledge)
Exhibit 10.1
Loan No. ▇▇▇▇▇▇▇▇
DEPOSIT ACCOUNT PLEDGE AGREEMENT
(SPI Reserve Account Pledge)
(SPI Reserve Account Pledge)
THIS DEPOSIT ACCOUNT PLEDGE AGREEMENT (this “Agreement”), dated June 22, 2010, is entered
into between Solar Power, Inc., a California corporation (“Grantor”) and Umpqua Bank, an Oregon
corporation (“Lender”). For valuable consideration, Grantor grants to Lender a security interest in
the Collateral to secure the Indebtedness of Solar Tax Partners 1, LLC, a California limited
liability company (“Borrower”) and agrees that Lender shall have the rights stated in this
Agreement with respect to the Collateral, in addition to all other rights which Lender may have
under the Loan Documents or by law.
DEFINITIONS. The following words shall have the following meanings when used in this
Agreement. Terms not otherwise defined in this Agreement or in the Loan Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All references to dollar amounts
shall mean amounts in lawful money of the United States of America.
Collateral. The word “Collateral” means the following described property of Grantor, whether
now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located:
Umpqua Bank deposit account No. 991976481, established in the name of Grantor (the “Deposit
Account”). The Deposit Account is the “SPI Reserve Account” as such term is defined in the Loan
Agreement. Grantor acknowledges that the Deposit Account is a “blocked” account and that the funds
therein are available only to Lender for application to the Indebtedness as and when permitted by
the Loan Documents.
In addition, the word “Collateral” includes all the following, whether now owned or hereafter
acquired, whether now existing or hereafter arising, and wherever located:
(a) All increases, and additions to and all replacements of and substitutions for the
Collateral.
(b) All products and produce of the Collateral, including but not limited to interest.
(c) All accounts, general intangibles, instruments, rents, monies, payments, and all other
rights, arising out of a sale, lease, or other disposition of any of the Collateral.
(d) All proceeds (including insurance proceeds) from the sale, destruction, loss, or other
disposition of any of the property described in this Collateral section.
(e) All records and data relating to any of the property described in this Collateral section,
whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together
with all of Grantor’s right, title, and interest in and to all computer software required to
utilize, create, maintain, and process any such records or data on electronic media.
Event of Default. The words “Event of Default” mean and include without limitation any of the
Events of Default set forth in any of the Loan Documents.
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Indebtedness. The word “Indebtedness” means the indebtedness evidenced by the Note, including
all principal and interest, together with all other indebtedness and costs and expenses for which
Borrower is responsible under the Loan Documents. In addition, the word “Indebtedness” includes all
other obligations, debts and liabilities, plus interest thereon, of Borrower to Lender, as well as
all claims by Lender against Borrower whether existing now or later; whether they are voluntary or
involuntary, due or not due, direct or indirect, absolute or contingent, liquidated or
unliquidated; whether Borrower may be liable individually or jointly with others; whether Borrower
may be obligated as guarantor, surety, accommodation party or otherwise; whether recovery upon such
indebtedness may be or hereafter may become barred by any statute of limitations; and whether such
indebtedness may be or hereafter may become otherwise unenforceable.
Note. The word “Note” means that certain Promissory Note of even date herewith, executed by
Borrower in favor of Lender, in the principal amount of Nine Million Nine Hundred Fifty Thousand
and 00/100 Dollars ($9,950,000.00).
Loan Agreement. The words “Loan Agreement” mean that certain Loan Agreement executed by
Borrower and Lender of even date herewith, with respect to the Note and the Indebtedness.
Loan Documents. The words “Loan Documents” means all documents evidencing, securing, or
executed in connection with the Indebtedness, whether now or hereafter existing, including but not
limited to the Loan Agreement, the Note, the Security Documents and this Agreement, each as they
may be modified, amended, extended, renewed, superseded or substituted from time to time.
Uniform Commercial Code. The words “Uniform Commercial Code” shall mean the California
Uniform Commercial Code, as it may be amended from time to time.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
Perfection of Security Interest. Grantor agrees to take whatever actions are requested by Lender
to create, perfect and continue Lender’s security interest in the Collateral, including but not
limited to execution of signature cards, deposit account agreements and similar documents. Upon
request of Lender, Grantor will deliver to Lender any and all of the documents evidencing or
constituting the Collateral, and Grantor will note Lender’s interest upon any and all chattel paper
if not delivered to Lender for possession by Lender. Grantor hereby appoints Lender as its
irrevocable attorney-in-fact for the purpose of executing any documents necessary to create,
perfect or continue the security interest granted in this Agreement. Lender may at any time, and
without further authorization from Grantor, file a carbon, photographic or other reproduction of
any financing statement or of this Agreement for use as a financing statement. Grantor will
reimburse Lender for all expenses for the perfection and the continuation of the perfection of
Lender’s security interest in the Collateral. Grantor promptly will notify Lender before any change
in Grantor’s name, including any change to any assumed business names of Grantor. This
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is a continuing agreement and will continue in effect until the Indebtedness is indefeasibly paid
and performed in full; provided, however that: if (1) Borrower has achieved a Debt Service Coverage
Ratio of not less than 1.20:1.00 as of the end of the Fourth Loan Year and the Fifth Loan Year, or
if Borrower achieves a Debt Service Coverage Ratio of not less than 1.20:1.00 as of the end of each
of two subsequent and consecutive Loan Years beginning with the Sixth Loan Year, and (2) at that
time the Debt Service Reserve Account is fully funded in the amount of $700,000, or more, then the
Lender will release its security interest in the SPI Reserve Account.
No Violation. The execution and delivery of this Agreement will not violate any law or
agreement governing Grantor or to which Grantor is a party, and its articles of incorporation and
bylaws do not prohibit any term or condition of this Agreement.
Transactions Involving Collateral. Grantor shall not sell, offer to sell, or otherwise
transfer or dispose of the Collateral. Grantor shall not pledge, mortgage, encumber or otherwise
permit the Collateral to be subject to any lien, security interest, encumbrance, or charge, other
than the security interest provided for in this Agreement, without the prior written consent of
Lender. This includes security interests even if junior in right to the security interests granted
under this Agreement.
Title. Grantor represents and warrants to Lender that it holds good and marketable title to
the Collateral, free and clear of all liens and encumbrances except for the lien of this Agreement.
No financing statement covering any of the Collateral is on file in any public office other than
those which reflect the security interest created by this Agreement or to which Lender has
specifically consented, and Grantor has not entered into any control agreement with any other
creditor concerning the Deposit Account. Grantor shall defend Lender’s rights in the Collateral
against the claims and demands of all other persons.
Liens. Grantor will pay when due all taxes, assessments and liens upon the Collateral.
Grantor may withhold any such payment or may elect to contest any lien if Grantor is in good faith
conducting an appropriate proceeding to contest the obligation to pay and so long as Lender’s
interest in the Collateral is not jeopardized in Lender’s sole opinion. If the Collateral is
subjected to a lien which is not discharged within fifteen (15) days, Grantor shall deposit with
Lender cash, a sufficient corporate surety bond, or other security satisfactory to Lender in an
amount adequate to provide for the discharge of the lien plus any interest, costs, attorneys’ fees
or other charges that could accrue as a result of any lien on the Collateral. In any contest
Grantor shall defend itself and Lender, and shall satisfy any final adverse judgment before
enforcement against the Collateral. Grantor shall name Lender as an additional obligee under any
surety bond furnished in the contest proceedings.
Compliance with Governmental Requirements. Grantor shall comply promptly with all laws,
ordinances, rules and regulations of all governmental authorities, now or hereafter in effect,
applicable to the ownership, production, disposition, or use of the Collateral. Grantor may contest
in good faith any such law, ordinance or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Lender’s interest in the Collateral, in Lender’s opinion,
is not jeopardized.
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EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but shall not be
obligated to) discharge or pay any amounts required to be discharged or paid by Grantor under this
Agreement, including without limitation all taxes, liens, security interests, encumbrances, and
other claims, at any time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear interest at the rate
charged under the Note from the date incurred or paid by Lender to the date of repayment by
Grantor. All such expenses shall become a part of the Indebtedness and, at Lender’s option, will:
(a) be payable on demand; (b) be added to the balance of the Note and be apportioned among and be
payable with any installment payments to become due during either: (i) the remaining term of the
Note; or (ii) be treated as a balloon payment which will be due and payable at the Note’s maturity.
This Agreement also will secure payment of these amounts. Such right shall be in addition to all
other rights and remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
CONSENTS OF GRANTOR: The Grantor hereby unconditionally consents and agrees that, without
notice to or further assent from the Grantor:
(a) the principal amount of the Indebtedness may be increased or decreased and additional
Indebtedness or obligations of the Borrower under the Loan Documents may be incurred, by one or
more amendments, modifications, renewals or extensions of any Loan Document or otherwise;
(b) the time, manner, place or terms of any payment under any Loan Document may be extended or
changed, including by an increase or decrease in the interest rate on any Indebtedness or any fee
or other amount payable related to the Indebtedness or under such Loan Document, by an amendment,
modification or renewal of any Loan Document or otherwise;
(c) the time for the Borrower’s (or any other Person’s) performance of or compliance with any
term, covenant or agreement on its part to be performed or observed under any Loan Document may be
extended, or such performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms as the Lender may
deem proper;
(d) the Lender may discharge or release, in whole or in part, any other grantor of security
for the Indebtedness, or any Guarantor or other Person liable for the payment and performance of
all or any part of the Indebtedness, and may permit or consent to any such action or any result of
such action, and shall not be obligated to demand or enforce payment upon any of the collateral for
the Indebtedness, nor shall the Lender be liable to the Grantor for any failure to collect or
enforce payment or performance of the Indebtedness from any Guarantor or Person or to realize on
the collateral therefor;
(e) in addition to the collateral encumbered by the Security Documents, the Lender may take
and hold other security (legal or equitable) of any kind, at any time, as collateral for the
Indebtedness, and may, from time to time, in whole or in part, exchange, sell, surrender, release,
subordinate, modify, waive, rescind, compromise or extend such security and may permit
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Loan No. 68890396
or consent to any such action or the result of any such action, and may apply such security and
direct the order or manner of sale thereof;
(f) the Lender may request and accept other guaranties of the Indebtedness and any other
obligations or liabilities of the Borrower to the Lender and may, from time to time, in whole or in
part, surrender, release, subordinate, modify, waive, rescind, compromise or extend any such
guaranty and may permit or consent to any such action or the result of any such action; and
(g) the Lender may exercise, or waive or otherwise refrain from exercising, any other right,
remedy, power or privilege (including the right to accelerate the maturity of any Indebtedness and
any power of sale) granted by any Loan Document or Security Document or agreement, or otherwise
available to the Lender, with respect to the Indebtedness, any of the collateral or other security
for any or all of the Indebtedness, even if the exercise of such right, remedy, power or privilege
affects or eliminates any right of subrogation or any other right of the Grantor against the
Borrower;
all as the Lender may deem advisable, and all without impairing, abridging, releasing or
affecting this Agreement.
GRANTOR WAIVERS.
(a) Grantor waives and agrees not to assert:
(i) any right to require the Lender to marshal assets in favor of the Borrower, the Grantor,
any Guarantor or any other Person, to proceed against the Borrower, any other grantor of collateral
for the Indebtedness or any Guarantor or other Person, to proceed against or exhaust any of the
collateral or any other security held for the Indebtedness, to give notice of the terms, time and
place of any public or private sale of personal property security constituting the collateral or
any other collateral or security for the Indebtedness or comply with any other provisions of §9504
of the Uniform Commercial Code (or any equivalent provision of any other applicable law) or to
pursue any other right, remedy, power or privilege of the Lender whatsoever;
(ii) the defense of the statute of limitations in any action hereunder or for the collection
or performance of the Indebtedness;
(iii) any defense arising by reason of any lack of corporate or other authority or any other
defense of the Borrower, the Grantor, any Guarantor, or any other Person;
(iv) any defense based upon the Lender or Trustee’s errors or omissions in the administration
of the Indebtedness;
(v) any rights to set-offs and counterclaims;
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(vi) (A) the Grantor’s rights of subrogation, reimbursement, indemnification, and
contribution and (B) any other rights and defenses that are or may become available to the Grantor
by reason of California Civil Code Sections 2787 to 2855, inclusive;
(vii) any rights or defenses the Grantor may have in respect of its obligations as a grantor
of collateral for the Indebtedness, a guarantor or other surety by reason of any election of
remedies by the creditor;
(viii) any rights or defenses Grantor may have because the Loan obligation is secured by real
property or an estate for years. These rights or defenses include, but are not limited to, any
rights or defenses that are based upon directly or indirectly, the application of Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure to the Loan;
(ix) any rights or defenses that Grantor may have because the Loan is secured by real
property. This means, among other things: (A) Lender may collect from Grantor without first
foreclosing on any real or personal property collateral pledged by Borrower; and (B) If Lender
forecloses on any real property collateral pledged by Borrower: (1) The amount of the
Indebtedness may be reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price; and (2) Lender may collect from
Grantor even if Lender or Trustee, by foreclosing on the real property collateral, has destroyed
any right Grantor may have to collect from Borrower. This is an unconditional and irrevocable
waiver of any rights and defenses Grantor may have because the Borrower’s debt is secured by real
property. These rights and defenses include, but are not limited to, any rights or defenses based
upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure;
(x) any rights or defenses arising out of an election of remedies by the creditor, even though
that election of remedies, such as a nonjudicial foreclosure with respect to security for the
Indebtedness has destroyed the Grantor’s rights of subrogation and reimbursement against the
principal by the operation of California Code of Civil Procedure Section 580d or otherwise; and
(xi) without limiting the generality of the foregoing, to the fullest extent permitted by law,
any defenses or benefits that may be derived from or afforded by applicable law limiting the
liability of or exonerating guarantors or sureties, or which may conflict with the terms of this
Agreement.
(b) The Grantor waives any and all notice of the acceptance of this Agreement, and any and all
notice of the creation, renewal, modification, extension or accrual of the Indebtedness, or the
reliance by the Lender upon this Agreement, or the exercise of any right, power or privilege
hereunder. The Indebtedness shall conclusively be deemed to have been created, contracted,
incurred and permitted to exist in reliance upon this Agreement. The Grantor waives promptness,
diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and
all other notices to or upon the Borrower, the Grantor or any guarantor or other person with
respect to the Indebtedness.
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(c) The obligations of the Grantor hereunder are independent of and separate from the
obligations of the Borrower, and any other guarantor and upon the occurrence and during the
continuance of any Event of Default, a separate action or actions may be taken or brought against
the Grantor to foreclose this Agreement, whether or not the Borrower or any Guarantor or any other
grantor of collateral for the Indebtedness is joined therein or a separate action or actions are
brought against the Borrower , any Guarantor, or any other Grantor.
(d) The Grantor shall not have any right to require the Lender to obtain or disclose any
information with respect to: (i) the financial condition or character of the Borrower or the
ability of the Borrower to pay and perform the Indebtedness; (ii) the Indebtedness; (iii) the
collateral or other security for any or all of the Indebtedness; (iv) the existence or nonexistence
of any other guarantees of all or any part of the Indebtedness; (v) any action or inaction on the
part of the Lender or any other Person; or (vi) any other matter, fact or occurrence whatsoever.
(e) The Grantor shall not have, shall not directly or indirectly exercise, and hereby
subordinates to the rights of Lender and Borrower, (i) any rights that it may acquire by way of
subrogation under this Agreement, by any payment hereunder or otherwise, (ii) any rights of
contribution, indemnification, reimbursement or similar suretyship claims arising out of this
Agreement, and (iii) any other right which it might otherwise have or acquire (in any way
whatsoever) which could entitle it at any time to share or participate in any right, remedy or
security of the Lender as against the Borrower, other Grantor, or any guarantor, whether in
connection with any of the Loan Documents or otherwise. If any amount shall be paid to the Grantor
on account of the foregoing rights at any time when all the Indebtedness shall not have been paid
in full, such amount shall be held in trust for the benefit of the Lender and shall forthwith be
paid to the Lender to be credited and applied to the Indebtedness, whether matured or unmatured, in
accordance with the terms of the Loan Documents.
EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an event of
default hereunder (“Event of Default”):
(a) If any representation or warranty of Grantor contained in this Assignment is found to be
untrue or misleading in any material respect;
(b) If Grantor shall fail to pay when due or to observe or perform any other material
obligation, term covenant, condition, representation, or warranty contained in the PBI Agreement
subject to any applicable notice and cure periods; and
(c) The occurrence of any Event of Default under the Loan Agreement, or any of the Loan
Documents.
Upon the occurrence of any Event of Default hereunder, Assignee may take any action Assignee may
deem necessary to protect its security, and may exercise any of its rights or remedies set forth in
the Loan Documents, or otherwise available at law or in equity. All such rights and remedies of
Assignee shall be cumulative.
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RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Agreement, at any
time thereafter, Lender shall have all the rights of a secured party under the California Uniform
Commercial Code. In addition and without limitation, Lender may exercise any one or more of the
following rights and remedies:
Appoint Receiver. To the extent permitted by applicable law, Lender shall have the following
rights and remedies regarding the appointment of a receiver: (a) Lender may have a receiver
appointed as a matter of right; (b) the receiver may be an employee of Lender and may serve without
bond; and (c) all fees of the receiver and his or her attorney shall become part of the
Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note
rate from date of expenditure until repaid.
Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may collect
the payments, rents, income, and revenues from the Collateral, including but not limited to
interest. Lender may at any time in its discretion transfer any Collateral into its own name or
that of its nominee and receive the payments, rents, income, and revenues therefrom and hold the
same as security for the Indebtedness or apply it to payment of the Indebtedness in such order of
preference as Lender may determine. If the Collateral is applied to the Indebtedness, the amount
applied shall be the principal balance of the Deposit Account and all accrued interest not
previously paid to Grantor, less any penalties for early withdrawal or similar changes. Insofar as
the Collateral consists of accounts, general intangibles, insurance policies, instruments, chattel
paper, choses in action, or similar property, Lender may demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose, or realize on the Collateral as Lender may determine,
whether or not Indebtedness or Collateral is then due. For these purposes, Lender may, on behalf of
and in the name of Grantor, receive, open and dispose of mail addressed to Grantor; change any
address to which mail and payments are to be sent; and endorse notes, checks, drafts, money orders,
documents of title, instruments and items pertaining to payment, shipment, or storage of any
Collateral.
Obtain Deficiency. If Lender chooses to sell or realize on any or all of the Collateral,
Lender may obtain a judgment against Borrower for any deficiency remaining on the Indebtedness due
to Lender after application of all amounts received from the exercise of the rights provided in
this Agreement.
Other Rights and Remedies. Lender shall have all the rights and remedies of a secured creditor
under the provisions of the Uniform Commercial Code, as may be amended from time to time. In
addition, Lender shall have and may exercise any or all other rights and remedies it may have
available at law, in equity, or otherwise.
Cumulative Remedies. All of Lender’s rights and remedies, whether evidenced by this Agreement
or by any other writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of Grantor under this
Agreement, after Grantor’s failure to perform, shall not affect Lender’s right to declare a default
and to exercise its remedies.
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Loan No. 68890396
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this
Agreement:
Amendments. This Agreement, together with any Loan Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Agreement. No
alteration of or amendment to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration or amendment.
Applicable Law. This Agreement has been delivered to Lender and accepted by Lender in the
State of California. This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
Attorneys’ Fees; Expenses. Grantor agrees to pay upon demand all of Lender’s reasonable costs
and expenses, including attorneys’ fees and Lender’s legal expenses, incurred in connection with
the enforcement of this Agreement outside of a judicial or quasi-judicial proceeding. Lender may
pay someone else to help enforce this Agreement in that manner and Grantor shall pay the costs and
expenses of such enforcement. In the event of any action, proceeding, or arbitration arising out
of or in connection with this Agreement, whether or not pursued to judgment, the prevailing party
shall be entitled, in addition to all other relief, to recover its costs and reasonable attorneys’
fees, including those incurred in any case, action, proceeding or claim under the Federal
Bankruptcy Code or any successor statute. Costs and expenses include attorneys’ fees, legal
expenses, expert witness and consulting fees whether or not there is a lawsuit, including
attorneys’ fees, costs and legal expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals, or post-judgment collection services or
proceedings.
Caption Headings. Caption headings in this Agreement are for convenience purposes only and
are not to be used to interpret or define the provisions of this Agreement.
Notices. Any notice to be given or other document to be delivered by any party to the other
or others hereunder, may be delivered in person to an officer of any party, or transmitted via
facsimile with receipt confirmed by telephone, or by Federal Express or other similar overnight
delivery service, overnight charges prepaid, and addressed to the party for whom intended, as
follows:
Deposit Account Pledge Agreement
(SPI)
(SPI)
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Loan No. 68890396
| To Lender:
|
Umpqua Bank Attn: ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
|||
| with a copy to: | ||||
| Kraft Opich, LLP ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||
To Grantor:
|
Solar Power, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
|||
| with a copy to: | ||||
| ▇▇▇▇▇▇▇▇▇ Genshlea Chediak ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||
Power of Attorney. Grantor hereby appoints Lender as its true and lawful attorney-in-fact,
irrevocably, with full power of substitution to do the following: (a) to demand, collect, receive
receipt for, ▇▇▇ and recover all sums of money or other property which may now or hereafter become
due, owing or payable from the Collateral; (b) to execute, sign and endorse any and all claims,
instruments, receipts, checks, drafts or warrants issued in payment for the Collateral; (c) to
settle or compromise any and all claims arising under the Collateral, and, in the place and stead
of Grantor, to execute and deliver its release and settlement for the claim; and (d) to file any
claim or claims or to take any action or institute or take part in any proceedings, either in its
own name or in the name of Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable. This power is given as security for the Indebtedness, and the authority
hereby conferred is and shall be irrevocable and shall remain in full force and effect until
renounced by Lender.
Preference Payments. Any monies Lender pays because of an asserted preference claim in
Grantor’s or Borrower’s bankruptcy will become a part of the Indebtedness and, at Lender’s option,
shall be payable by Grantor or Borrower as provided above in the “Expenditures By Lender”
paragraph.
Deposit Account Pledge Agreement
(SPI)
(SPI)
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Loan No. 68890396
Severability. If a court of competent jurisdiction finds any provision of this Agreement to
be invalid or unenforceable as to any person or circumstance, such finding shall not render that
provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain valid and enforceable.
Successor Interests. Subject to the limitations set forth above on transfer of the
Collateral, this Agreement shall be binding upon and inure to the benefit of the parties, their
successors and assigns.
Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right
otherwise to demand strict compliance with that provision or any other provision of this Agreement.
No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a
waiver of any of Lender’s rights or of any of Grantor’s obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the granting of such consent by
Lender in any instance shall not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or withheld in the sole discretion
of Lender.
Waiver of Co-obligor’s Rights. If more than one person is obligated for the Indebtedness,
Grantor irrevocably waives, disclaims and relinquishes all claims against such other person which
Grantor has or would otherwise have by virtue of payment of the Indebtedness or any part thereof
specifically including but not limited to all rights of indemnity, contribution or exoneration.
Jury Trial Waiver. Grantor waives any right to trial by jury with respect to any action or
proceeding brought by Borrower, Lender, or any other Person relating to the Loan, the Loan
Documents, this Agreement or any understandings or prior dealings between the parties.
GRANTOR AGREES THAT THIS AGREEMENT CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY
PURSUANT TO THE PROVISIONS OF CODE OF CIVIL PROCEDURE § 631 AND GRANTOR DOES CONSTITUTE AND APPOINT
LENDER ITS TRUE AND LAWFUL ATTORNEY-IN-FACT (THE APPOINTMENT BEING COUPLED WITH AN INTEREST) AND
GRANTOR DOES AUTHORIZE AND EMPOWER ASSIGNEE, IN THE NAME, PLACE, AND STEAD OF GRANTOR, TO FILE THIS
LOAN AGREEMENT WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENT JURISDICTION AS A STATUTORY
WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.
Initials: [Insert initials of parties].
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Judicial Reference Provision: In the event the Jury Trial Waiver set forth above is not
enforceable, the parties elect to proceed under this Judicial Reference Provision.
(a) With the exception of the items specified in clause (c), below, any controversy, dispute
or claim (each, a “Claim”) between the parties arising out of or relating to the Loan or this
Agreement or any other document, instrument or agreement between the undersigned parties
(collectively in this Section, the “Bank Documents”), will be resolved by a reference proceeding in
California in accordance with the provisions of Sections 638 et seq. of the California Code of
Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy
for the resolution of any Claim, including whether the Claim is subject to the reference
proceeding. Except as otherwise provided in the Bank Documents, venue for the reference proceeding
will be in the state or federal court in the county or district where the real property involved in
the action, if any, is located or in the state or federal court in the county or district where
venue is otherwise appropriate under applicable law (the “Court").
(b) The matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise of self-help
remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv)
temporary, provisional or ancillary remedies (including, without limitation, writs of attachment,
writs of possession, temporary restraining orders or preliminary injunctions). This reference
provision does not limit the right of any party to exercise or oppose any of the rights and
remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent
jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition
to, any of those items does not waive the right of any party to a reference pursuant to this
reference provision as provided herein.
(c) The referee shall be a retired judge or justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).
(d) The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
(e) The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless
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otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in
conducting discovery, depositions may be taken by either party upon seven (7) days written notice,
and all other discovery shall be responded to within fifteen (15) days after service. All disputes
relating to discovery which cannot be resolved by the parties shall be submitted to the referee
whose decision shall be final and binding.
(f) Except as expressly set forth herein, the referee shall determine the manner in which the
reference proceeding is conducted including the time and place of hearings, the order of
presentation of evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee, except for trial,
shall be conducted without a court reporter, except that when any party so requests, a court
reporter will be used at any hearing conducted before the referee, and the referee will be provided
a courtesy copy of the transcript. The party making such a request shall have the obligation to
arrange for and pay the court reporter. Subject to the referee’s power to award costs to the
prevailing party, the parties will equally share the cost of the referee and the court reporter at
trial.
(g) The referee shall be required to determine all issues in accordance with existing case law
and the statutory laws of the State of California. The rules of evidence applicable to proceedings
at law in the State of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, enter equitable orders that will be
binding on the parties and rule on any motion which would be authorized in a court proceeding,
including without limitation motions for summary judgment or summary adjudication. The referee
shall issue a decision at the close of the reference proceeding, which disposes of all claims of
the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be
entered by the Court as a judgment or an order in the same manner as if the action had been tried
by the Court and any such decision will be final, binding and conclusive. The parties reserve the
right to appeal from the final judgment or order or from any appealable decision or order entered
by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written
statement of decision, and the right to move for a new trial or a different judgment, which new
trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation, which provides for appointment of a referee is repealed (and
no successor statute is enacted), any dispute between the parties that would otherwise be
determined by reference procedure will be resolved and determined by arbitration. The arbitration
will be conducted by a retired judge or justice, in accordance with the California Arbitration Act
§1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to
discovery set forth above shall apply to any such arbitration proceeding.
(i) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER
THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL
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BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY,
DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THE LOAN OR THIS
AGREEMENT, OR THE OTHER BANK DOCUMENTS.
Initials: [Insert initials of parties].
USA Patriot Act Notice. Lender hereby notifies Grantor that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies Grantor, which information
includes the name and address of Grantor and other information that will allow Lender to identify
Grantor in accordance with the Act.
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Whereupon, this Deposit Account Pledge Agreement is entered into as of the date first above
written
GRANTOR:
Solar Power, Inc.,
a California corporation
a California corporation
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Its: | CEO | |||
LENDER:
Umpqua Bank, an Oregon corporation
| By: | /s/ ▇▇ ▇▇▇▇▇▇ | |||
| ▇▇ ▇▇▇▇▇▇ | ||||
| Senior Vice President | ||||