Amendment No. 2 to Turnkey Engineering, Procurement and Construction Agreement
EXHIBIT 10.58
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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. 2 to Turnkey
Engineering, Procurement
This Amendment No. 2 to Turnkey,
Engineering, Procurement and Construction Agreement for Solar Photovoltaic
Generating Facility (this “Amendment”), is made
and entered into as of this 25 day of November
2008, 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, 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 D” of the Agreement in its
entirety and inserting “Appendix D” 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 jurisdiction under present or future laws, then (i) the validity and
enforceability of all provisions of this Amendment not ruled to be invalid or
unenforceable shall be unaffected and remain in full force and effect; (ii) the
effect of the ruling shall be limited to the jurisdiction of the court or other
government body making the ruling; (iii) the provision(s) held illegal, wholly
or partly invalid or unenforceable shall be deemed amended, and the court or
other government body is authorized to reform the provision(s), to the minimum
extent necessary to render them valid and enforceable in conformity with the
Parties’ intent as manifested herein.
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]
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/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
[Signature
Page to Amendment to Agreement]
APPENDIX
D
Construction
and Milestone Payment Schedule
Schedule
of Values for Progress Payments *
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Milestone
Activities
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Payment
Due (U.S.
Dollars)**
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%
Owed of Total
Contract
Price
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Cumulative
% Owed of
Total
Contract Price
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***
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****
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****
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****
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* Each
item will be billed when complete.
**
Payment Due is 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.
Note:
Notwithstanding
any amount otherwise billed, due or payable pursuant to this schedule, prior to
January 1, 2009, in no event shall FPL have any obligation to pay more than $***
to Contractor under the Agreement. Unless FPL terminates the
Agreement prior to January 1, 2009, in which case FPL shall pay to Contractor
the Termination Payment, on and after January 1, 2009, FPL shall pay to
Contractor all amounts owed pursuant to the terms of this
Agreement. If FPL issues a Notice Proceed before January 1, 2009, the
parties will consider, in their sole discretion, amending by mutual agreement
the dates stated in this Appendix D.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
