Amendment No. 4 to Turnkey Engineering, Procurement and Construction Agreement
EXHIBIT
10.7
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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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Amendment No. 4 to Turnkey
Engineering, Procurement
This
Amendment No. 4 to Turnkey Engineering, Procurement and Construction Agreement
for Solar Photovoltaic Generating Facility (this “Amendment”), is made
and entered into as of this 25th day
of September 2009, by and among Florida Power & Light Company (“FPL”) and SunPower
Corporation, Systems (“Contractor”, together
with FPL, the “Parties”,
individually, a “Party”).
W I T N E S S E T
H:
WHEREAS,
the Parties entered into that certain Turnkey Engineering, Procurement and
Construction Agreement for Solar Photovoltaic Generating Facility, dated as of
July 3, 2008 (as amended by Amendment to Turnkey Engineering, Procurement and
Construction Agreement for Solar Photovoltaic Generating Facility, dated as of
October 7, 2008, Amendment 2 to Turnkey Engineering, Procurement and
Construction Agreement for Solar Photovoltaic Generating Facility, dated as of
November 25, 2008, and Amendment 3 to Turnkey Engineering, Procurement and
Construction Agreement for Solar Photovoltaic Generating Facility, dated as of
March 26, 2009, the “Agreement”);
and
WHEREAS,
the Parties have agreed to amend the Agreement as set forth in this Amendment;
and
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties do hereby
agree as follows:
1. The
Agreement shall be amended by deleting “Appendix N” of the Agreement in its
entirety and inserting “Appendix N” to this Amendment in lieu
thereof.
2. This
Amendment is executed in connection with, and is deemed to be a part of, the
Agreement. Upon the execution of this Amendment, this Amendment shall
thereafter automatically become a part of the Agreement. Wherever the
terms of this Amendment and the terms of the Agreement are in conflict, the
terms of this Amendment shall govern and control. Capitalized terms
used herein, unless otherwise defined in this Amendment, shall have the meanings
ascribed to them in the Agreement.
3. The
execution, delivery, and performance of this Amendment has been duly authorized
by all requisite corporation action and this Amendment constitutes the legal,
valid and binding obligation of FPL and Contractor, enforceable against each
Party in accordance with its terms.
4. If any
one or more of the provisions of this Amendment should be ruled illegal, wholly
or partly invalid or unenforceable by a court or other government body of
competent
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5. The
Parties acknowledge and agree that this Amendment may be executed in multiple
counterparts, and transmitted via telecopy, each such counterpart (whether
transmitted via telecopy or otherwise), when executed, shall constitute an
integral part of one and the same agreement between the Parties.
6. Except as
expressly modified by this Amendment, all of the terms, conditions, covenants,
agreements and understandings contained in the Agreement shall remain unchanged
and in full force and effect, and the same are hereby expressly ratified and
confirmed by the Parties.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES TO FOLLOW]
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IN
WITNESS WHEREOF, the Parties have affixed their signatures, effective on the
date first written above.
Florida Power & Light
Company
By: /s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: VP E&C
SunPower Corporation,
Systems
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Director,
PMO
[Signature
Page to Amendment to Agreement]
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Revised
9-24-09
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APPENDIX N - Termination Payment
Schedule
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Schedule
of Termination of Values
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Termination
Dollars Due*
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%
Owed of Total Contract Price
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If
Terminated After:
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$***
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***%
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$***
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***%
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$***
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*Termination
values are based on a Contract Price of $***. If the Contract Price is
adjusted pursuant to the Agreement, the termination values shall be
adjusted to the product of the adjusted Contract Price and the applicable
"% Owed of Total Contract Price" for a given termination
value.
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Note:
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The
Termination Payment due and payable upon a termination on or prior to
January 1, 2009, shall be the applicable amount provided for under the
column "Termination Dollars Due" for a termination on or after a date
specified under the column "If Terminated After" less the aggregate amount
of the Contract Price paid by FPL to Contractor as of such date. The
Termination Payment due and payable upon a termination after January 1,
2009 shall be the greater of: (1) the applicable amount provided for under
the column "Termination Dollars Due" for a termination on or after a date
specified under the column "If Terminated After" less the aggregate amount
of the Contract Price paid by FPL to Contractor as of such date and (2)
the aggregate amount of outstanding approved and unpaid Requests for
Payment made pursuant to the Agreement which entitle Contractor to payment
in accordance with the Construction and Milestone Payment
Schedule. If FPL issues a Notice to Proceed before January 1,
2009, the parties will consider, in their sole discretion, amending by
mutual agreement the dates stated in this Appendix N.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
