exhibit10-7.htm


    EXHIBIT
10.7

    


    


     

    


     

    
      	
              
                CONFIDENTIAL
      TREATMENT REQUESTED

                --

              

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

              

            


    

     

    
      
      

    

    


    Amendment No. 4 to Turnkey
Engineering, Procurement

    and Construction
Agreement

    


    


    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

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        
 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]

     


    
      
        
                                                                   

        

         


      

      
        2

        
          

        

      

      
         


      

    


    


     

    IN
WITNESS WHEREOF, the Parties have affixed their signatures, effective on the
date first written above.

    


    Florida Power & Light
Company

    


    


    By: /s/ William
Yeager                                                                

    Name:  William
Yeager

    Title:  VP E&C

    


    


    


    SunPower Corporation,
Systems

    


    


    By: /s/ Kevin P.
Hennessy                                                                

    Name:  Kevin P.
Hennessy

    Title:  Director,
PMO

    


    


    


    


     

    


     

    


     

    


     

    [Signature
Page to Amendment to Agreement]

    


    



    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	 
      	
              Revised
      9-24-09

            	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
              APPENDIX N - Termination 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.