Amendment No. 3 to Turnkey Engineering, Procurement and Construction Agreement
EXHIBIT 10.9
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
|
Amendment No. 3 to Turnkey
Engineering, Procurement
and Construction
Agreement
This
Amendment No. 3 to Turnkey Engineering, Procurement and Construction Agreement
for Solar Photovoltaic Generating Facility (this “Amendment”), is made
and entered into as of this 26th day of March 2009, by and among Florida Power
and 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 1 to Turnkey Engineering, Procurement and Construction Agreement for
Solar Photovoltaic Generating Facility, dated as of October 7, 2008 and
Amendment 2 to Turnkey Engineering, Procurement and Construction Agreement for
Solar Photovoltaic Generating Facility, dated as of November 25,
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. Section
1.1.71 shall be amended by deleting the same in its entirety and inserting the
following in lieu thereof: “1.1.71 “Guaranteed Provisional Acceptance Date”
means ***, the date which Contractor guarantees that the Project shall achieve
Provisional Acceptance, as such date may be extended in accordance with the
terms hereof.”
2. The
Agreement shall be amended by deleting Section 7.4.3 of Appendix A Scope of Work
in its entirety and inserting the following in lieu thereof: “***
3. The
Agreement shall be amended by deleting “Appendix C” of the Agreement in its
entirety and inserting “Appendix C” to this Amendment in lieu
thereof.
4. 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.
5. 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.
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
1
6. 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.
7. 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.
8. 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.
9. 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]
2
IN
WITNESS WHEREOF, the Parties have affixed their signatures, effective on the
date first written above.
Florida Power & Light
Company
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President
SunPower Corporation,
Systems
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Executive
Vice President
[Signature
Page to Amendment 3 to Agreement]
3
APPENDIX
C
CRITICAL
MILESTONES & MILESTONES
DESOTO
| 1. Mobilize for Construction | *** |
| 2. Begin Bearing Pedestals | *** |
| 3. Bearing Pedestals 50% Complete | *** |
| 4. Electrical Interconnection Complete | *** |
| 5. Bearing Pedestals Complete | *** |
| 6. Torque Arms Installed Complete | *** |
| 7. PV Modules 100% Delivered | *** |
| 8. Communications Infrastructure for DAS Complete | *** |
| 9. Tracker Erection Complete | *** |
| 10. PV Modules Installed Complete | *** |
| 11. Electrical Construction Complete | *** |
| 12. Provisional Acceptance | *** |
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
Revised
3/25/09
|
Revised
▇-▇▇-▇▇
|
|||
|
▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇▇▇ Payment
Schedule
|
|||
|
Schedule
of Termination of Values
|
|||
|
Termination
Dollars Due*
|
%
Owed of Total Contract Price
|
If
Terminated After:
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
|
***
|
***
|
***
|
|
*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.
Note:
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.
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.