exhibit109.htm


     EXHIBIT 10.9

    
      
        	  

                
                  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

                

              


      

    

     

    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.

    
      
        
        

      

      
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    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.

     

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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/ William
Yeager                                                                

    Name:      William
Yeager

    Title:        Vice
President

    


    


    


    SunPower Corporation,
Systems

    


    


    By:           /s/ Howard
Wenger                                                                

    Name:      Howard
Wenger

    Title:        Executive
Vice President

    


    


    


    


     

    


     

    


     

    


     

    [Signature
Page to Amendment 3 to Agreement]

    


    



    
      
         


      

      
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    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
      3-25-09

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
              APPENDIX N - Termination Payment
      Schedule

            
	 
      	 
      	 
      	 
      
	
              Schedule
      of Termination of Values

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
              Termination
      Dollars Due*

            	
              %
      Owed of Total Contract Price

            	
              If
      Terminated After:

            	 
      
	
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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.

    


    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.