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As Of Filer Filing For·On·As Docs:Size 3/03/08 Sunpower Corp 10-K 12/30/07 19:8.9M |
Document/Exhibit Description Pages Size 1: 10-K Annual Report HTML 2.03M 2: EX-10.20 Amended and Restated Employment Agreement, HTML 60K Effective January 11, 2007 3: EX-10.24 Second Amendment to Lease, Dated December 18, 2007 HTML 108K 4: EX-10.25 Pv Risk Reduction Agreement, Dated December 18, HTML 29K 2007 5: EX-10.37 Ingot/Wafer Agreement, Dated December 3, 2007 HTML 157K 6: EX-10.49 Turnkey Construction Contract With Solargen, Dated HTML 560K December 28, 2007 7: EX-10.51 Turnkey Construction Contract With Sedwick, Dated HTML 462K October 10, 2007 8: EX-10.53 Turnkey Construction Contract With Almuradiel, HTML 529K Dated November 6, 2007 9: EX-10.54 Turnkey Construction Contract With Moralas, Dated HTML 543K November 6, 2007 10: EX-10.55 Turnkey Construction Contract With Naturener, HTML 537K Dated November 6, 2007 11: EX-10.56 Amendment to Turnkey Construction Contract, Dated HTML 18K November 21, 2007 12: EX-10.57 Amendment to Turnkey Construction Contract With HTML 36K Almuradiel, Dated November 29, 2007 13: EX-10.58 Amendment to Turnkey Construction Contract With HTML 37K Moralas, Dated November 29, 2007 14: EX-10.59 Amendment to Turnkey Construction Contract With HTML 48K Naturener, Dated November 29, 2007 15: EX-21.1 List of Subsidiaries HTML 25K 16: EX-23.1 Consent of Independent Registered Public HTML 11K Accounting Firm 17: EX-31.1 Certification by Chief Executive Officer Pursuant HTML 17K to Rule 13A-14(A)/15D-14(A) 18: EX-31.2 Certification by Chief Financial Officer Pursuant HTML 17K to Rule 13A-14(A)/15D-14(A) 19: EX-32.1 Certification Furnished Pursuant to 18 U.S.C. HTML 13K Section 1350
1.
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DEFINITIONS
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4
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2.
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PURPOSE
AND SCOPE OF WORK
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8
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2.1
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PURPOSE
OF THE CONTRACT
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8
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2.2
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SCOPE
OF WORK
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8
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2.3
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EXCLUSIONS
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9
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2.4
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CHANGES
IN THE SCOPE
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9
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3.
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COMMENCEMENT
OF WORK
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10
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4.
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PRICE
AND FORM OF PAYMENT
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11
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4.1
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CONTRACT
PRICE
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11
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4.2
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PAYMENT
MILESTONES
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12
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4.3
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INVOICING
SYSTEM AND FORM OF PAYMENT
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13
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5.
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IMPLEMENTATION
SCHEDULE. TESTS AND PROVISIONAL ACCEPTANCE
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14
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5.1
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IMPLEMENTATION
SCHEDULE. CHANGES IN THE DEADLINE
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14
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5.2
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PERFORMANCE
TESTS AND PROVISIONAL ACCEPTANCE
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14
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6.
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OTHER
OBLIGATIONS OF THE CONTRACTOR
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16
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6.1
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PREVENTION
OF OCCUPATIONAL RISKS
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16
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6.2
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OBLIGATION
TO PROVIDE ACCESS TO THE SITE
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17
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6.3
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MINIMUM
STOCK AND SUPPLY OF SPARE PARTS
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17
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6.5
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REGULATORY
COMPLIANCE
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17
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6.6
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PERMITS
AND AUTHORIZATIONS
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18
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6.7
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TRAINING
OF THE OWNER’S PERSONNEL
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18
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6.8
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DESIGNATION
OF PROJECT DIRECTOR
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18
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6.9
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TAXES
AND IMPORT DUTIES
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18
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6.10
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INTELLECTUAL
AND INDUSTRIAL PROPERTY RIGHTS
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18
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6.11
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COOPERATION
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19
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||
7.
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OBLIGATIONS
OF THE OWNER
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19
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8.
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GUARANTEES
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20
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8.1
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SOLAR
MODULE DEGRADATION GUARANTEE
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20
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8.2
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SOLAR
MODULE CAPACITY GUARANTEE
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20
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8.3
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DESIGN,
ASSEMBLY AND PERFORMANCE GUARANTEE. MATERIALS QUALITY
GUARANTEE.
|
20
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8.4
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SOLAR
PARK PRODUCTION GUARANTEE.
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22
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8.5
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BONDS
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24
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9.
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FINAL
ACCEPTANCE OF THE SOLAR PARK
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24
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10.
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OWNERSHIP
OF THE FACILITIES AND TRANSFER OF RISK
|
25
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11.
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INSURANCE
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25
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12.
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FORCE
MAJEURE
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26
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13.
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SUSPENSION
OF THE WORK
|
27
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13.1
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SUSPENSION
BY THE OWNER
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27
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13.2
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SUSPENSION
BY THE CONTRACTOR.
|
28
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13.3
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SUSPENSION
BY JUDICIAL OR GOVERNMENTAL AUTHORITY
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28
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14.
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TERMINATION
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29
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||
14.1
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TERMINATION
FOR CAUSES ATTRIBUTABLE TO THE CONTRACTOR
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29
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14.2
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TERMINATION
BY THE CONTRACTOR
|
32
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14.3
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TERMINATION
DUE TO FORCE MAJEURE
|
33
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15.
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ASSIGNMENT
AND SUBCONTRACTING
|
33
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15.1
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ASSIGNMENT
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33
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15.2
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SUBCONTRACTING
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33
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16.
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LIABILITY
AND DAMAGES
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34
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||
17.
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OWNER
FINANCING
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35
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18.
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CONFIDENTIALITY
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35
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19.
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NOTICES
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36
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20
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LAW
AND JURISDICTION
|
37
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(A)
|
SEDWICK CORPORATE, S.L.
(hereinafter, the “Owner”), with a
registered office at Hermosilla 31, 4, 28001 Madrid and having Tax
Identification Code (CIF) number B-85093276 herein represented by Iígo
Gortázar Sánchez Torres., with National Identity Document (DNI) No.
50847425Z, pursuant to the powers conferred upon him pursuant to a
resolution of the board of directors passed on the date hereof, notarized
on the date hereof before the Notary Public of Madrid Mr. Luis Sanz
Rodero.
|
(B)
|
SUNPOWER ENERGY SYSTEMS SPAIN,
S.L. (hereinafter, the “Contractor”), with a
registered office in Madrid at calle Pradillo nº 5, herein represented by
Mr. Marco Antonio Northland, bearing U.S. Passport No. 047605878, in his
capacity as attorney-in-fact of such entity pursuant to a public
instrument executed before Mr. Ignacio Martínez Gil-Vich, a Madrid notary,
on November 28, 2006, and recorded in his notarial protocol under No.
4.551.
|
(1)
|
The
Owner is interested in promoting the installation and operation of a solar
park in Olivenza, consisting of one hundred fifty (150) Solar Facilities
having approximately 120kWp of peak power and 100 kWe at the
inverter.
|
(2)
|
The
Contractor is dedicated to the construction and start-up of facilities of
this type, and intends and has the capacity to construct the Solar Park in
accordance with the specifications of this
Contract.
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(3)
|
The
Owner will partially finance the payment of the Contract Price through
financing to be made available to the Owner by one or more credit
providers (the “Financing
Institutions”).
|
-
|
Final Start-Up Certificate or
Final Start-Up: means the governmental certificate referred to in
Sections 115 c) and 132 of Royal Decree 1.955/2000, of December 1, with
respect to each of the Solar Facilities and the Electrical Infrastructure,
which allows for the commencement of the commercial operation thereof,
including, for the purposes of this Contract, obtaining the registration
of each of such Solar Facilities and Electrical Infrastructures with the
Register of Power Facilities included within the Special Regime (Registro Administrativo de
Instalaciones de Producción de Energía en Régimen Especial),
pursuant to the provisions of Section 12 of Royal Decree 661, which grants
to the corresponding facilities the status of a production facility
accepted under the special regime.
|
-
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Direct Agreement: the
agreement to be executed on the date hereof among the Contractor, the
Owner and WestLB AG, Sucursal en España pursuant to the template attached
as Annex
9.
|
-
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Scope of Work: the
entirety of all services, supplies and work that the Contractor must
provide under this Contract in accordance with the provisions of Clause
2.1 and the specific details contained in Annex
2.
|
-
|
Insurance Advisor: means
Willis or any other insurance advisor appointed by the Financing
Institutions in the context of the financing of the Solar
Park.
|
-
|
Legal Advisor: means
Gómez-Acebo & Pombo, S.L. or any other legal advisor that the
Financing Institutions may designate in the context of the financing of
the Solar Park
|
-
|
Technical Advisor: means
Sylcom Solar or any other technical advisor appointed by the Financing
Institutions in the context of the financing of the Solar
Park.
|
-
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Performance Bond: means
the bond payable on demand to be delivered by the Contractor in accordance
with the provisions of Clause 8.5 to guarantee the performance of its
contractual obligations and which shall be effective as from delivery
thereof to the Owner in accordance with the provisions of this contract
until the execution of the Solar Park Provisional Acceptance
Certificate.
|
-
|
Guarantee Bond: means
each of the bonds payable on demand to be delivered by the Contractor in
accordance with the provisions of Clause 8.5 to guarantee the performance
of its contractual obligations during the Guarantee Period, which shall be
effective as from the execution of the Solar Park Provisional Acceptance
Certificate through the execution of the Final Acceptance
Certificate.
|
-
|
Final Acceptance Certificate
(FAC): means the certificate that shall be executed by the Parties
at the end of the Guarantee Period to attest to the final acceptance of
the Solar Park by the Owner.
|
-
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Solar Park Provisional
Acceptance Certificate (Park PAC): means the certificate that shall
be executed by the Parties concurrently with the execution of the
Provisional Acceptance Certificate for the last Solar Facility forming a
part of the Solar Park, to evidence the proper operation of the Solar Park
as a result of the Overall Test of all Solar Facilities and the Electrical
Infrastructure, as well as the Contractor’s compliance with the
obligations set forth in this Contract, without prejudice to the
provisions established for the Guarantee
Period.
|
-
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Solar Facility Provisional
Acceptance Certificate (Facility PAC): means the certificate that
shall be executed by the Parties to evidence the proper operation of the
equipment as a result of the Performance Tests for each of the Solar
Facilities (including the Electrical Infrastructure associated with each
Solar Facility) and the Contractor’s compliance with the obligations set
forth in this Contract, without prejudice to the provisions established
for the Guarantee Period. In order to issue a Provisional
Acceptance Certificate for a Solar Facility, proper operation of the
General Electrical Infrastructure in order to meet the installed capacity
of the Solar Facilities in operation at such time must also be
verified.
|
-
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Contractor: means
SUNPOWER ENERGY SYSTEMS SPAIN, S.L. and any other
company that may succeed it in its obligations in accordance with the
provisions of this Contract.
|
-
|
Maintenance Agreement:
means the Maintenance Agreement entered into by the Contractor and
the Owner on even date herewith, providing for the assumption by the
Contractor of the maintenance work for the Solar Park upon execution of
the Solar Park Provisional Acceptance
Certificate.
|
-
|
Systemic Defect: is an
operational failure of the Solar Facilities of the Solar Park occurring
during the Production Guarantee Period that (i) is not caused by
non-conforming performance of the Work by the Contractor under this
Contract, the Technical Specifications, the Construction Model or the
regulations applicable to the Work (in accordance with the terms of this
Contract), and (ii) that
|
|
§
|
is
the same failure or is a failure that affects, at least: 0.5% of the solar
modules, 10 or more inverters or their corresponding peripheral systems,
10 or more trackers, or 4 or more transformers (including breakers and
switches) supplied by the same manufacturer for the Solar Park;
or
|
|
§
|
the
relevant supplier or well-known independent third party in the solar
industry reports that at least 1% of worldwide production of the
corresponding model of solar module, inverter, tracker or transformer is
affected by the same operational failure and advises replacement thereof
(in which event the Owner must receive proof in the form of delivery of a
document signed by the manufacturer or of a report from an
independent third party which confirms the existence of said systemic
failure with reference to the model and series of the affected
equipment).
|
-
|
Business Day: means any
day other than a bank holiday in Madrid, London and Olivenza (Badajoz),
Saturdays expressly excluded as Business Day. For payment purposes (or for
calculating terms of payment set forth in this Contract), any day other
than a bank holiday in Madrid, London and New York, Saturdays expressly
excluded as Business Day.
|
-
|
Authorized Equipment:
means the list of brands and models of the principal equipment or elements
that will make up the Solar Facilities and the Electrical Infrastructures
described in Annex
8 hereto.
|
-
|
Site: means the site
where the Solar Park will be built, located in the municipality of
Olivenza (Badajoz) with coordinates 38º73’19 north, 7º8’25 west, altitude
206 meters over the sea level, formed by land properties 12939, 12938,
6911 and 14536 of the Olivenza Land
Registry.
|
-
|
Technical Specifications:
means the technical conditions for executing the Work that were
prepared by the Contractor and delivered to the Owner, and that make up
Annex
2.
|
-
|
Environmental Impact
Study: means the mandatory environmental report to get the
Environmental Impact Declaration according to the regulation applicable to
the Site, a copy of which is attached as Annex
10.
|
-
|
Payment Milestones:
means the milestones for the payment of the Contract Price, as described
in Clause 4.2 below.
|
-
|
Specific Electrical
Infrastructure: means the entirety of
the electrical elements permitting the evacuation to the distribution grid
of the electrical power produced by each of the Solar Facilities,
including from the Solar Facilities to the specific transformer center for
such Solar Facility.
|
-
|
General Electrical
Infrastructure: means the entirety of
the electrical elements permitting the connection of each of the Solar
Facilities, from the specific transformer center, in order to permit the
evacuation of electrical power generated by each Solar Facility to the
distribution grid, including the Evacuation Line, the distribution and
sectioning center, the substation and supplemental
elements of supervision, monitoring and data
collection.
|
-
|
Electrical
Infrastructure: collectively, the General Electrical
Infrastructures and the Specific Electrical
Infrastructures.
|
-
|
Solar Facility: means
the entirety of the electromechanical elements that allow for the
generation of low voltage (“LV”) electrical power, including from the
solar modules themselves, solar trackers, and inverters, to the LV meter,
with a peak unit capacity of approximately 120
kWp.
|
-
|
Evacuation Lines: the 20
kV output electrical evacuation line of the distribution center of the
General Electrical Infrastructure, necessary to connect such
Infrastructures to the substation of the power distribution company
(Endesa) in Olivenza (Badajoz).
|
-
|
Solar Park: means the
entirety of the one hundred fifty (150) Solar Facilities having
approximately 120 kWp of peak capacity and 100 kWe at the inverter, with a
total peak capacity of 18 MWp, located at the Site, including the
Electrical Infrastructure and any other facilities that, in accordance
with the terms of this Contract, may be necessary for its
Start-Up.
|
-
|
Guarantee Period: means
the period between the signing of the Provisional Acceptance Certificate
for the first Solar Facility until satisfaction of the conditions for the
execution of the Final Acceptance
Certificate.
|
-
|
Production Guarantee Period:
means the period between the execution of the Solar Park
Provisional Acceptance Certificate and *** following execution of such
certificate.
|
-
|
Contract Price: The
price payable by the Owner to the Contractor for the performance of the
obligations contained in this Contract, the amount of which is set forth
in Clause 4 of the Contract. For purposes of this Contract, the
price corresponding to an individual Solar Facility shall be the amount
obtained by dividing the total Contract Price by the one hundred fifty
(150) Solar Facilities.
|
-
|
Implementation Schedule:
means the schedule for the implementation of the Scope of Work,
which is attached as Annex
3 to this Contract.
|
-
|
Owner: means
SEDWICK CORPORATE, S.L., as well as any
company subrogating to its contractual position in accordance with the
provisions of this Contract.
|
-
|
Overall Test: means the
test described in Annex
4, to be performed as a prerequisite to the execution of the Solar
Park Provisional Acceptance Certificate to verify the proper operation of
all Solar Facilities and the Electrical Infrastructure. The Overall Test
will definitively verify the proper operation of the General Electrical
Infrastructure to absorb the power discharged by all Solar
Facilities.
|
-
|
Performance Tests: means
the tests described in Annex
4, to be performed as a prerequisite to the execution of each Solar
Facility Provisional Acceptance Certificate to verify the proper operation
of the corresponding Solar Facility and Electrical Infrastructures.
Pursuant to the provisions of Clause 5.2(1), each Performance Test will be
performed on a minimum of ten (10) Solar Facilities (with their
corresponding Electrical
Infrastructures).
|
-
|
Production Tests: means
the tests that will be performed at the end of the Production Guarantee
Period in order to determine compliance with the Production Guarantee set
forth in Clause 8.4, following the protocols set forth in Annex
4.
|
-
|
Start-up: means, with
reference to a particular Solar Facility and/or Electrical Infrastructure,
the point when all of the work required by this Contract has been
completed and all Performance Tests have been passed in accordance with
this Contract and the Annexes hereto, the Provisional Acceptance
Certificate has been executed and the corresponding Final Start-up
Certificate has been received (as confirmed by the Legal Advisor).
Reference to Start-up of a Solar Park shall be understood to mean the
point when all Solar Facilities and corresponding Electrical
Infrastructures have passed the Overall Tests and comply with the above
referenced requirements.
|
-
|
RD 661: Royal Decree No.
661/2007, of May 25, which regulates activities involving the production
of power under special regime.
|
-
|
Subcontractors: means
the subcontractors with which the Contractor subcontracts all or part of
the works to be executed under this
Contract.
|
-
|
Work: means the work and
supplies to be provided by the Contractor pursuant to the provisions of
this Contract.
|
(1)
|
According
to the terms and conditions of this Contract, the Contractor shall carry
out and shall be responsible for all of the equipment, services, supplies
and work comprising the Scope of Work. The Scope of Work includes each of
the following concepts, as well as all acts that, even if not expressly
mentioned in this Contract or in Annex
2, are necessary for the proper operation, performance and
commercial exploitation of the Solar Park, in each case in accordance with
the customary usage and practices in the industry for a project having
these characteristics, this Contract, the Technical Specifications, and
applicable law (without prejudice to the provisions of Clause
2.4(4)):
|
|
§
|
Execution
of all aspects of the Scope of Work and the supply of all materials,
elements and equipment set forth in Annex
2, and the supply of all materials necessary and appropriate to
properly carry out the Scope of
Work.
|
|
§
|
Performance
of inspections, inventory of materials, performance controls, tests and
other analyses required under applicable law and in accordance with the
technical specifications and this
contract.
|
|
§
|
Transportation
to the Site of all materials, equipment, utilities, spares parts,
consumables and machinery for which the Contractor is responsible under
the Contract.
|
|
§
|
Direct
and indirect labor necessary to carry out the Scope of Work and all costs
and social charges associated with such
labor.
|
|
§
|
Demolition
and dismantling of the provisional facilities not required by the Owner
and conditioning and cleaning of the Site following issuance of the Solar
Park Provisional Acceptance
Certificate.
|
|
§
|
Maintenance,
protection, security, custody and conservation of the equipment installed
or stored at the Site up to the signing of the Solar Park Provisional
Acceptance Certificate.
|
|
§
|
Preparation
and delivery to the Owner of all documentation within the scope of this
Contract, sufficiently in advance for the utilization thereof by the
Owner. In particular, the delivery of the documentation and manuals set
forth in Annex
2.
|
|
§
|
Training
of the Owner’s personnel in the operation and maintenance of the materials
and equipment acquired in accordance with the terms of Clause 6.7 of this
Contract.
|
|
§
|
Construction
of all necessary auxiliary facilities, their maintenance, cleaning and
security during the performance of the Work, including that performed in
compliance with the regulations for the Prevention of Occupational Risks
and the Social Security and Health Plan; as well as the demolition or
dismantling of any temporary facilities not required by the Owner and the
conditioning and clearing of the Site following the issuance of the Solar
Park Provisional Acceptance
Certificate.
|
|
§
|
Provision
of material and human resources required to comply with the regulations
for the Prevention of Occupational Risks and the Social Security and
Health Plan, as well as the creation of the Social Security and Health
Plan.
|
(2)
|
At
any time prior to Provisional Acceptance, the Owner may propose a change
to the Scope of Work by sending the Contractor a notice describing the
nature and scope of the change. Upon receipt of such notice, the
Contractor must send to the Owner, within a maximum period of ten (10)
Business Days, a communication that includes a complete proposal for the
changes in the Contract Price, deadlines and form of payment, or any other
changes that may be necessary in connection with the changes proposed by
the Owner. This communication shall also include a reasoned explanation of
the grounds and/or criteria used for the calculation of the new Contract
Price and/or deadline.
|
(3)
|
The
Contractor may, at any time during the performance of the Contract,
propose changes to the Scope of Work that it deems necessary or
appropriate to improve the quality, efficiency or safety of the Solar Park
or the facilities or supplies that make up the Solar Park. The Owner, at
its discretion, may approve or reject the changes proposed by the
Contractor. The Parties will execute a Change Order in the
event that the modifications are approved by the
Owner.
|
(4)
|
In
addition, upon the entry into force, promulgation, derogation or change of
any mandatory legal provision after the execution of this Contract that
affects the Work, the Parties shall sign a document governing the changes
that must be made to the purpose of this Contract including the extension
of the terms set forth in this
Contract.
|
(5)
|
The
Owner and the Contractor shall negotiate in good faith the effects on the
deadlines agreed to under this Contract that might occur as a result of
the changes requested within the context of the provisions of this Clause.
In any event, the prices applicable to any change in the Scope of Work
shall consist of the costs of the additional work or supplies arising
therefrom (reasonably justified to the Owner) plus ***% as the
Contractor’s margin.
|
(1)
|
The
Owner acknowledges that the Works have already started. Notwithstanding
the above, the lack of fulfilment of the conditions provided in section
(2) below shall not give the Contractor the right to claim any kind of
payment from the Owner for the works the Contractor may have done in
relation with this Contract.
|
(2)
|
The
Parties have agreed on the following conditions with regard to the payment
to be done by the Owner of the amount provided in Clause 4.2(i) and for
the delivery by the Owner of the Performance
Bond:
|
|
(i)
|
That
the Owner has obtained all the authorisations and licences necessary for
the start of the construction of the Solar Park, with the exception of
those that are intrinsic to the construction activity, in accordance with
the provisions of Clause 6.6 (having delivered to the Contractor a copy of
those which obtaining is the responsibility of the Owner). For
clarification purposes, the Owner must have obtained the corresponding
municipal work and activity permits (if applicable), as well as the
administrative authorisation and approval of the Electrical Infrastructure
Project, the connection point of the Solar Facilities and the
Environmental Impact Declaration for all the Solar Facilities of the Solar
Park;
|
|
(ii)
|
That
a letter from the Financing Entities agent has been delivered to the
Contractor confirming that the Owner has been granted financing to make
the payments owed by the Owner by virtue of this Contract and that the
conditions necessary to make the initial payment have been
met;
|
|
(iii)
|
That
the Contractor has confirmed to the Owner that the Site is fully
accessible and available for the start of the Works;
and,
|
(3)
|
In
the event that conditions (a) and (b) above have not been fulfilled within
fifteen (15) Business Days as from the date hereof; or, (b) all the
conditions having been fulfilled, the Condition Satisfaction Date has not
occurred by the ninth Business Day following the date the fifteen (15)
Business Days term expires, the Contractor and the Owner may terminate the
Contract by delivery to the other Party of a notice setting forth its
desire to terminate the Contract, and the Parties shall be released from
all obligations assumed with respect thereto. For the sake of clarity, no
Party shall be entitled upon the termination of this Contract in
accordance with this paragraph to claim any amount from the other Party as
consequence of such termination.
|
(4)
|
In
spite of the provisions of section 2 (iii) above, the Contractor
represents that, prior to the execution of this Contract, it has studied
the subterrain, surroundings and access
thereto.
|
(1)
|
The
Contract Price payable by the Owner to the Contractor in consideration for
the works to be performed by Contractor under this Contract shall be ***
Euros. This amount shall be increased by an amount corresponding to Value
Added Tax (VAT) pursuant to applicable law at any given time. The
Contractor hereby acknowledges and agrees that the Contract Price is a
lump-sum, fixed, and final price, and is not subject to any change or
revision whatsoever on the basis of any changes in the prices of labor,
materials, equipment, exchange rates or any other similar items, including
a change in any taxes levied on the scope of the
work.
|
|
§
|
taxes,
fees, industrial- and intellectual-property royalties on the equipment
supplied, Social Security and other encumbrances upon the supplied
equipment and materials in their country of origin or destination,
including, if applicable, the rights of free circulation in the European
Union and any other tax with respect to the importation of the Equipment
and the performance of the Work, except for the VAT on the actual Contract
Price. For purposes of clarification, the Price does not include
legalization fees or costs for permits and authorizations, which are the
responsibility of the Owner.
|
|
§
|
payroll
costs and the cost of equipment required for the Contractor’s performance
of the Work or to ensure the protection, security and proper performance
thereof.
|
(3)
|
In
the event of changes in the Scope of Work agreed to pursuant to the
provisions of this Contract, the price agreed to in the corresponding
Change Order shall apply.
|
(4)
|
Without
prejudice to the foregoing, in consideration for the maintenance and
security tasks to be performed by the Contractor prior to the execution of
the Solar Park Provisional Acceptance Certificate, the Owner shall pay to
the Contractor (in addition to the Contract Price), the portion of the
price contemplated in the Maintenance Agreement that is equivalent to the
percentage representing the Solar Facilities that have obtained the
Start-up with respect to all Solar Facilities contemplated by this
Contract.
|
|
(i)
|
On
the Condition Satisfaction Date, an amount equal to ***% percent of the
Contract Price, i.e., *** Euros, upon delivery of the Performance Bond by
the Contractor.
|
|
(ii)
|
Based
on the monthly progress of the civil works involving earth moving,
leveling and foundation laying, measured as 100 kWe Solar Facilities whose
foundations are completed, the Owner will pay up to a maximum of ***
percent (***%) of the Contract Price, i.e., *** Euros, upon presentation
of the respective invoices by the
Contractor.
|
|
(iii)
|
Upon
each delivery to the Site of the module supports, inverters and trackers
of each Solar Facility and presentation of the corresponding invoices not
earlier than two (2) months prior to the dates indicated in the
Implementation Schedule, the Owner shall pay up to a maximum of *** (***%)
percent of the Contract Price corresponding to such Solar
Facilities.
|
|
(iv)
|
Upon
each delivery of the solar modules of each Solar Facility to the Site and
upon presentation of the corresponding invoices not earlier than the dates
indicated in the Implementation Schedule, the Owner shall pay up to a
maximum of *** (***%) percent of the Contract Price corresponding to such
Solar Facilities.
|
|
(v)
|
Based
on the monthly progress of the mechanical assembly of the module supports,
solar trackers and the modules mounted thereon, as well as the
installation of the inverters and the transformer center, measured as
Solar Facilities of 100 kWe whose facilities up to the transformer center
have been completed, the Owner will pay up to a maximum of *** (***%)
percent of the Contract Price, upon presentation of the respective
invoices.
|
|
(vi)
|
Upon
the execution of each Provisional Acceptance Certificate for a Facility,
the Owner shall pay *** (***%) percent of the Contract Price corresponding
to such Solar Facility (together with the remaining portion of the
Contract Price, if any, that was not previously paid and that corresponds
to Work completed by the Contractor under this Contract in respect of such
Solar Facility). The last Solar Facility payment shall be made
concurrently with the execution of the Solar Park Provisional Acceptance
Certificate.
|
(1)
|
Once
the Contractor deems that a Payment Milestone has been achieved, the
Contractor shall give written notice thereof to the Owner and the
Technical Advisor, attaching thereto the invoice and any documentation
that may be necessary to demonstrate achievement of the corresponding
Payment Milestone (including, for this purpose, all of the documentation
that must be furnished by the Contractor to the Owner at any time,
pursuant to the provisions of Annex
2).
|
(2)
|
Within
fifteen (15) Business Days following receipt of the above-mentioned
notice, the Owner will confirm the achievement of the corresponding
Payment Milestone. Within such period, the Owner will communicate in
writing to the Contractor: (i) their agreement that
the corresponding Payment Milestone has been achieved, in which case the
Owner will provide documentary confirmation by approving the corresponding
invoice, or (ii)
that the Payment Milestone has not been fully achieved, in which case the
Owner must specify in writing to the Contractor a detailed and
reasoned explanation of the work pending performance in order for the
Payment Milestone to be deemed to have been achieved. In the
event that the Owner fails to respond to the Contractor within the
above-mentioned period of fifteen (15) Business Days, due solely to the
failure of the Contractor to provide all documentation required to verify
achievement of the Payment Milestone, the Owner agrees to request the same
within the above period of fifteen (15) Business Days. The Owner will be
allotted another ten (10) Business Days to issue their response, counting
from the date of receipt of all requested
documentation.
|
(3)
|
If
the Owner does not agree that a Payment Milestone has been achieved, the
Owner shall be entitled to return the corresponding invoice until the
Contractor has completed the work in accordance with the provisions of
this Contract. However, if the Parties agree that the disagreement
involves only part of the work included in the Payment Milestone, the
Owner shall pay the invoice amounts corresponding to the work not affected
by the dispute, with the rest remaining subject to full performance and
delivery by the Contractor in accordance with the terms of this
Contract.
|
(4)
|
If,
following the period referred to in subsection (2) above, the Owner has
not responded, the Contractor may send a demand notice to the Owner
communicating such fact and allowing an additional period of five (5)
Business Days for confirmation of their agreement or disagreement as to
the achievement of the respective Payment Milestone. If, upon expiration
of such period, the Owner still has not responded, achievement of the
Payment Milestone shall be deemed accepted by the
Owner.
|
(5)
|
Under
no circumstances shall the Owner’s agreement to a Payment Milestone imply
acceptance of the Work associated therewith, which acceptance shall in any
event remain conditioned upon passing the Performance Tests and executing
the respective Provisional Acceptance Certificate and, ultimately, the
Final Acceptance Certificate.
|
(6)
|
Payments
shall be made by the Owner to the Contractor via bank transfer to the bank
account designated by the Contractor within *** Business Days following
the date on which the Owner accepted the corresponding Payment Milestone
(or on the date on which the Payment Milestone was deemed accepted by the
Owner, in accordance with subsection (4) above). On an exceptional basis,
the payment corresponding to the first Payment Milestone shall be paid by
the Owner on the Condition Satisfaction Date (with respect to such
payment, approval of a Payment Milestone by the Contractor and the Owner
pursuant to the above provisions is not required)
.
|
(1)
|
The
Contractor hereby undertakes to perform the Work in accordance with the
Implementation Schedule attached hereto as Annex
3, such that the Solar Park Provisional Acceptance Certificate is
executed no later than the Delivery
Deadline.
|
(2)
|
The
dates for performance specified in the Implementation Schedule and, in
particular, the Delivery Deadline, are fixed and final, and may not be
postponed, and the performance deadlines may not be extended, except under
the following circumstances:
|
|
(i)
|
due
to agreed-upon changes in accordance with the provisions of Clause 2.4,
provided that such changes include an extension of the
deadlines;
|
|
(ii)
|
due
to a breach by the Owner giving rise to a delay in the Work (including,
specifically, delays in procuring authorizations and licenses for which it
is responsible or in the signature of the corresponding “Installations
Assignment Agreement” with the relevant utility company), provided that
such breaches are not attributable to actions, omissions or breaches by
the Contractor;
|
|
(iii)
|
suspension
of the Work in accordance with the provisions of Clause 13, except in the
event of suspensions attributable to the Contractor;
or
|
|
(iv)
|
the
occurrence of an event of Force Majeure that
reasonably justifies an extension of the deadlines established in the
Implementation Schedule.
|
(3)
|
The
Contractor must inform the Owner of the alleged facts or causes, in
writing and within a maximum period of ten (10) Business Days after the
Contractor becomes aware thereof, and the communication must be
accompanied by all available information and data on such date that
substantiate such facts and the consequences thereof on the Work, the
extension (if such extension can be determined) proposed by the
Contractor, and a detailed explanation of the measures adopted to mitigate
the consequences thereof.
|
(1)
|
Upon
completion of the construction of a group of at least ten (10) Solar
Facilities, or of the Solar Park, the Contractor shall notify the Owner so
that, within a maximum period of seven (7) Business Days, the Performance
Tests or the Overall Test may be commenced . All Tests shall be conducted
in accordance with the Test procedures and protocols attached hereto as
Annex
4. The Contractor agrees that the Performance Tests and
the procedures set forth in this Clause shall begin only when at least ten
(10) Solar Facilities are ready for provisional
acceptance.
|
(2)
|
Once
the Owner and the Technical Advisor have verified that the Performance
Tests (or, if applicable, the Overall Test) have been passed in accordance
with the standards set forth in this Contract and that the Owner has
received all documentation set forth in the Scope of Work, the Contractor
and the Owner shall execute the corresponding Provisional Acceptance
Certificate for the Solar Facilities delivered or the Provisional
Acceptance Certificate for the Solar Park, as applicable, provided that
the following conditions have been
met:
|
|
a)
|
The
Work corresponding to the applicable Solar Facilities, or, if applicable,
the Solar Park, has been satisfactorily
completed.
|
|
b)
|
All
of the documentation that the Contractor must submit in accordance with
the provisions of Annex
2 has been submitted to the
Owner;
|
|
d)
|
That
the Final Start-Up Certificate has been obtained in respect of the
appropriate Solar Facility or for the Solar Park, as appropriate. This
notwithstanding, the Contractor will not in any event be responsible for
(i) delays in obtaining the Final Start-Up Certificate with regard to the
corresponding Solar Facility or for the Solar Park that are produced as a
result of the late application or obtaining (or of not obtaining) those
licenses and authorizations which, in accordance with this Contract, are
not the Contractor’s responsibility;
or
|
|
e)
|
With
respect to the Solar Park Provisional Acceptance Certificate, the
Contractor has delivered to the Owner the Guarantee Bond in the amount
specified in Clause 8.5; and
|
|
f)
|
That
any technical penalties or for delays due to the Contractor by virtue of
the provisions of this Contract in connection with the corresponding Solar
Facility (or, in the case of the Solar Park Provisional Acceptance
Certificate, for the whole of the park) have been paid to the
Owner.
|
(3)
|
The
deadlines granted to the Contractor for completion of pending punch list
items upon execution of a Provisional Acceptance Certificate shall not be
considered an extension of the deadlines set forth in this Contract, and
the Contractor shall indemnify the Owner for any damages that the Owner
may incur as a result thereof pursuant to Clause 5.2(a)
above.
|
(4)
|
In
the event that the Owner does not execute the Provisional Acceptance
Certificates for the respective Solar Facilities (or, if
applicable, the Solar Park) within seven (7) Business Days of verifying
compliance with the stipulated requirements, the Contractor may request in
writing that the Owner execute the respective Certificate within an
additional period of five (5) Business Days. If the Owner has not executed
the new Provisional Acceptance Certificates for the Solar
Facilities (or, if applicable, the Solar Park) within said
period, the conditions required in this clause for execution of the
corresponding Certificate have been satisfied, it shall be understood that
provisional acceptance has been achieved, except to the extent
discrepancies exist as to the performance of the conditions required by
the same, in which event the Parties shall submit the matter to
arbitration in accordance with the provisions of Clause 20
(2).
|
(5)
|
Within
thirty (30) days following the execution of the Solar Park Provisional
Acceptance Certificate, the Contractor must: (i) remove from the Site any
material used in the construction, as well as any equipment, machinery,
tools, vehicles and temporary structures that are not necessary during the
Guarantee Period; (ii) clean the Site and remove any debris or waste; and
(iii) deliver the “As Built” Plans for the Solar
Park.
|
(1)
|
The
Contractor shall be obligated, in compliance with current legislation, to
perform the works under this Contract in such a way as to ensure the
safety of workers, and to apply the preventive activity principles set
forth in Law 31/1995 and its implementing
regulations. Accordingly, the Contractor shall be responsible
for designing the construction process in accordance with the provisions
of Royal Decree No. 1627/1997, which establish minimum safety and
health provisions for construction work, and in its the other implementing
or supplemental regulations, such that the safety of the activities that
are performed simultaneously or consecutively is ensured, and the safety
of third parties present in the vicinity of the work site is also
ensured.
|
(2)
|
In
particular, as part of the scope of this Contract, the Owner has prepared
a Safety and Health Study, and furthermore, in compliance with the
provisions of Royal Decree No. 1627/1997, the Contractor must prepare
a Workplace Safety and Health Plan, both specifically for the work
provided for within the scope of this Contract. The Contractor hereby
represents that they contain, or will contain, all requirements of such
Royal Decree and its implementing rules and regulations (including the
provisions of the autonomous communities that apply, if
any).
|
(3)
|
Furthermore,
the Owner (at the request of the Contractor) shall appoint a safety and
health coordinator, who shall have the obligations set forth in Royal
Decree 1627/1997, and who shall be responsible for ensuring that all of
personnel of the Contractor, the Subcontractors and of the suppliers of
equipment or materials under this Contract comply with the safety
requirements established in current legislation. Both the Owner and the
Contractor shall be obligated to respect and comply with their respective
obligations, as imposed by Royal Decree 1627/1997 and other applicable
rules and regulations.
|
(4)
|
The
Owner reserves the right to evaluate security during the construction
period. This does not imply that Owner has assumed
responsibility with respect to security measures taken or the preparation
of documentation or the content of such documentation referred to in this
Clause, without prejudice to the obligations and responsibilities under
law that attach as a result of Owner’s capacity as a developer. To this
effect, the Contractor shall provide to the Owner all documentation that
Owner may reasonably require in order to confirm the performance of the
obligations set forth in this
Clause.
|
(5)
|
For
clarification purposes, in no event shall the Contract Price be increased
if, as a result of a security check, legal review or technical risk
review, the Contractor is required to take additional measures designed to
guarantee compliance with applicable rules and regulations for the
prevention of occupational risks.
|
(1)
|
The
Contractor undertakes to observe and comply with the regulations
applicable to the performance of the Work, subject to the provisions of
subsection (3) below. In particular, the Contractor must ensure
compliance with regulations regarding classified activities, safety,
health, and environmental protection. In particular, the
Contractor shall be the only responsible party for compliance with
applicable law and regulations with respect to (i) ***, and (ii)
environmental protection during the period of manufacture, construction,
erection, Start-Up and Tests until the Solar Park Provisional Acceptance
Certificate has been executed.
|
(2)
|
The
Contractor represents that it is current in the payment of wages and
Social Security contributions for the professionals hired by the
Contractor to perform the services covered by this Contract. Accordingly,
the Contractor agrees to show to the Owner all documents that the Owner
may reasonably request evidencing compliance with wage, tax and Social
Security obligations (including, without limitation, certificates of good
standing and compliance with tax obligations and the TC1 and TC2 Social
Security dues bulletins).
|
(3)
|
In
the event of any change in the applicable rules and regulations after the
date on which this Contract is signed, the Parties shall proceed in
accordance with the provisions of Clause 2.4(4) above. In the event that
either Party does not sign the applicable change document, the Contractor
shall continue to perform the work in compliance with the rules and
regulations previously in force, and shall not assume any responsibility
for any breach of the applicable new rules and
regulations.
|
(2)
|
For
clarification purposes failure to obtain the Final Start-up Certificate in
the date set forth in Clause 14.1(g), will entitled the Owner to terminate
the Contract according to Clause 14 (without prejudice of Clause 14.1.6)
except in case such failure if this failure was due to (i) the Owner’s
failure to deliver of the documentation requested by the Contractor and
which Owner was required to furnish for the obtaining of the Final
Start-up Certificate or (ii) the late request or obtaining or the failure
to obtain such permits and authorizations that are not the responsibility
of the Contractor pursuant to this
Contract.
|
(1)
|
The
Contractor shall name a Project Director with an officially recognized
technical degree and relevant industry experience with similar
projects. The appointment of the Project Director must be
submitted to the Owner for approval. The Owner may not reject a proposed
candidate without just cause.
|
(2)
|
The
Project Director shall be responsible for overseeing proper performance of
the Work and for directing, managing, and supervising all of the
activities necessary for the implementation of the services agreed to by
the Contractor in accordance with the terms and time periods specified in
this Contract. Further, the Project Director shall be the
principle contact between the Contractor and the Owner during the term of
this Contract.
|
(3)
|
Without
prejudice to the foregoing subsection, in accordance with the terms of
this Contract and applicable law, the Contractor shall be responsible for
the actions of the Project Director and any and all consequences arising
from such actions.
|
|
(ii)
|
To
provide to the Contractor, its Subcontractors and employees, during the
effective term of this Contract, access to the Site to fulfill their
contractual obligations, including appropriate access to highways and
access roads to perform the Work. For these effects, the Owner will
execute, at its cost and expense, agreements with landowners that procure
all necessary easements or land use
rights;
|
|
(iii)
|
Process
and obtain, at his cost and responsibility, the licenses and
authorizations necessary for the start of the construction (amongst which
are included, but not restricted to, the corresponding municipal building
and activity licenses, if required, as well as the administrative
authorization and approval of the Electrical Infrastructure Project, the
connection point for the Solar Facilities and the environmental permits
for all the Solar Facilities in the Solar Park), as well as all the
licenses necessary for the Start-Up and operation of the Solar Park, other
than the Final Start-Up
Certificate;
|
|
(iv)
|
Provide
the Contractor with all the documentation and collaboration that is
reasonably required to obtain the Final Start-Up
Certificate and other licenses and authorizations that the
latter must obtain as set forth in this Contract, and that must be
provided by the Owner;
|
|
(v)
|
To
cooperate with the Contractor, to the extent necessary, in order to avoid
any impact on the Implementation Schedule or in the performance of the
works by the Contractor;
|
|
(vi)
|
To
appoint a project coordinator to act on behalf of the Owner in the
performance of matters associated with the Contract and who must possess
sufficient powers to represent the Owner. The Owner’s project coordinator
will be Mr. Juan Ignacio Marti Junco except in case a notice communicating
the change of project coordinator has been sent by the Owner to the
Contractor;
|
|
(vii)
|
The
Owner undertakes to provide to the Contractor all of the cooperation that
the latter may reasonably request in connection with the implementation of
the Work and compliance with the Contractor’s obligations under this
Contract. The Owner shall submit to the Contractor all
documentation or information that the Contractor may reasonably request in
connection with the Solar Park and that is available to the
Owner.
|
|
The
Contractor guarantees the durability of the solar modules during the
Guarantee Period, in accordance with the schedule of guarantees made by
the manufacturer of the modules set forth on Annex
6 of this Contract. Upon expiration of the Guarantee
Period, the Contractor undertakes to assign to the Owner its rights under
the module supplier guarantees through the remainder of the 25-year useful
life of the modules.
|
(1)
|
The
Contractor guarantees that the total peak capacity of the Solar Park is
equal to or higher than the contracted capacity of 18,000 kWp (which will
be confirmed by the manufacturer’s photoflash certificates). In addition,
all certificates for each module shall be within the rated peak capacity
margin of ***% and all aggregate certificates for each of the Solar
Facilities shall be within the rated peak capacity margin of ***%
(although the Solar Park aggregate will not have a margin with respect to
the above referenced peak
capacity).
|
(2)
|
In
the event that (i) the total sum of the certificates is less than the
contracted 18,000 kWp, or (ii) the certificates do not comply with the
above referenced margins, the Contractor shall replace, at its expense,
solar modules as needed to increase the total peak capacity of the Solar
Park to the minimum permitted under subsection (1) above, or those modules
whose individual capacity is inferior to the aforementioned
tolerance.
|
(3)
|
If,
as of the Delivery Deadline (or the date set forth in Clause 14.1(1)(i) if
this is a later date), the sum of the manufacturer’s photoflash
certificates demonstrate the peak capacity of the Solar Park is less than
the referenced total peak capacity, the Owner may terminate the Contract
for Contractor breach in accordance with the terms of Clause 14.1, and pay
the indemnity set forth in such
Clause.
|
(4)
|
The
Owner reserves the right to perform capacity tests on the solar module
samples that have been provided at the CIEMAT, CENER or IFE-Frauhofer
laboratories, in accordance with the applicable IEC (International
Electrotechnical Commission) standard in order to confirm their compliance
with the capacity specified by the manufacturer and guaranteed by the
Contractor. The results thereof shall be binding on the Parties. In the
event that such results confirm that the capacity of the modules does not
fall within the tolerance guaranteed by the Contractor, the Contractor
shall bear the costs of such tests and shall immediately replace the
entire batch of modules corresponding to the tested samples, except to the
extent that the modules failing the capacity test can be identified, in
which case, only those modules shall be
replaced.
|
(1)
|
The
Contractor guarantees during the Guarantee Period that the procedures
followed for the design of the facilities and for the performance of the
work are of the required quality and conform to the specifications
contained in this Contract.
|
(2)
|
The
Contractor is obliged to repair or, if necessary in its opinion, to supply
totally new, and reinstall free of charge to the Owner, those parts or
components of the facilities included in the Scope of Work that fail
during the Guarantee Period due to design, assembly or performance
defects.
|
(3)
|
The
provisions of subsections 8.3(2) to (8) below with respect to the
Materials Quality Guarantee shall apply, mutatis mutandis, to
the guarantee provided under this
subsection.
|
(1)
|
The
Contractor guarantees that all the materials and components used in the
manufacture, assembly and Start-up of the Solar Park are of the required
quality and conform to the specifications for the equipment and the
technical documents contained in the Annexes to this
Contract. The Contractor further guarantees a minimum stock of
spare parts to the Owner in accordance with the terms of Clause 6.3 and
Annex
5 of this Contract.
|
(2)
|
The
materials quality guarantee will enter into force on the date of issuance
of the relevant Solar Park Provisional Acceptance Certificate and shall
remain in force until the Solar Park Final Acceptance Certificate is
signed. If the Solar Park or a portion thereof, cannot be commercially
operated during the Guarantee Period for reasons attributable to the
Contractor, the Guarantee Period shall be extended (only as regards the
affected facilities) for a period equal to the period during which the
corresponding facilities are not operating. For this purpose,
the parties shall record in writing the periods during which operation is
suspended and the corresponding extensions of the
guarantee.
|
|
a)
|
To
replace any material and equipment that do not comply with what was agreed
upon or required pursuant to this Contract, or that are inadequate or of a
deficient quality; and
|
|
b)
|
To
adjust, repair or replace any equipment exhibiting any design, materials,
manufacturing, operation, or performance defect. If a Systemic Defect
exists with respect to any equipment or components supplied under this
Contract, the Contractor shall carry out, at its expense, the redesign
and/or modifications necessary to cure such problem in accordance with the
Owner’s requirements.
|
(4)
|
The
adjustments, repairs or replacements must be performed within the shortest
period that is reasonably possible (and, in any event, no later than
fifteen (15) days from the time the defect is detected), in a manner that
is least prejudicial to the Owner and taking all action needed to cause
the least possible harm to the operation of the overall facilities of the
Solar Park.
|
(5)
|
Repairs,
adjustments, alterations, replacements or maintenance that may be
necessary because of the normal wear and tear of on the facilities
provided under this Contract or caused by misuse or negligent use of the
equipment by the Owner or by third parties (other than the Contractor or
its Subcontractors) or because of the use of the equipment supplied to
Owner in a manner that does not conform to the technical specifications,
are all excluded from the scope of the guarantee. For
clarification purposes, it shall be understood that the Owner (or third
parties acting on its behalf) has used equipment in the intended manner
when such use conforms to the operation and maintenance manuals delivered
to the Owner by the Contractor pursuant to this Contract. This
guarantee will not be enforceable in the event of the inaccessibility of
the Site, provided that the Contractor has notified the Owner of the
existence of such inaccessibility, or, in the events of Force Majeure (whilst
the circumstances preventing access
last).
|
(6)
|
The
obligations arising from the guarantee set forth in this section shall be
fulfilled by the Contractor at its sole cost and expense and free of any
charges or expenditures by the Owner, and the Contractor shall bear the
expenses arising as a result thereof for the Owner, such as demolition and
disassembly, construction, carting, insurance and packaging for returned
materials and their replacement, assembly and supervision, taxes and the
like.
|
(7)
|
All
repaired or replaced material shall carry a new guarantee period of the
following duration from the date of repair or
replacement:
|
|
(i)
|
if
repaired, *** (***) months or the time remaining until the issuance of the
Solar Park Final Acceptance Certificate, whichever is longer;
and
|
|
(ii)
|
if
replaced, *** (***) months or the time remaining until the issuance of the
Solar Park Final Acceptance Certificate, whichever is
longer.
|
(8)
|
The
Contractor guarantees the availability of spare parts for the modules;
inverters and solar trackers during the Guarantee Period and during the
entire useful life of each Solar Facility, in the latter case provided the
Maintenance Agreement remains in force. The Contractor shall provide such
guarantee on the following terms:
|
|
(i)
|
With
respect to the module, inverter or solar tracker spare parts that are
manufactured by the Contractor or by companies of its group (currently
headed by Sunpower Corporation), the Contractor shall ensure that such
spare parts continue to be manufactured or, in the event that the
Contractor or the companies of its group do not manufacture spare parts
identical to those already installed, that spare parts for modules,
inverters or solar trackers of similar characteristics (and, in the case
of modules, of equal or greater capacity) are available, provided they do
not entail a reduction in the guaranteed performance of the Solar
Park.
|
|
(ii)
|
With
respect to the module, inverter or solar tracker spare parts that are not
manufactured by the Contractor or by companies of its group, the
Contractor shall use reasonable efforts to (a) cause the respective
suppliers to continue to manufacture such spare parts or other spare parts
with similar characteristics (and, in the case of modules, of equal or
greater capacity), provided they do not entail a reduction of the
guaranteed performance of the Solar Park, or (b) obtain such spare parts
with similar characteristics from other vendors with technical
capabilities that are at least similar to the original
ones. Should the Contractor become aware that an original
vendor intends to stop manufacturing such spare parts, it shall so notify
the Owner so that the Owner may order, through the Contractor, the spare
parts it deems appropriate, provided they are available on the
market.
|
(1)
|
The
Contractor guarantees to the Owner that the aggregate electric output of
the Solar Park during each of the *** periods included in the Production
Guarantee Period shall reach the PR guaranteed pursuant to Annex
11 (the “Guaranteed PR”), for
each determined irradiance and temperature condition, and that in no event
shall it fall beneath the PR minimum set forth in such Annex (the “Minimum
PR”).
|
(2)
|
A
Production Test shall be performed at the end of each *** period dividing
the Production Guarantee Period in order to confirm the electrical
output. For these purposes, within the forty-five (45) days
prior to the termination of the *** period following the execution of the
Solar Park Provisional Acceptance Certificate, and within the forty-five
(45) days prior to the termination of the Production Guarantee Period, the
Contractor shall notify the Owner of such circumstance so that the Parties
may agree upon a date the perform the Production Tests for the
corresponding *** period (which, in no event may be later than the date
which is fifteen (15) Business Days following the date of termination of
the period which is *** following the execution of the Solar Park
Provisional Acceptance Certificate or the termination date of the
Production Guarantee Period, as applicable). The following shall apply to
the results of the Production Tests for the Solar
Park:
|
|
(a)
|
If
the actual measured output of the Solar Park is less than the Guaranteed
PR for the corresponding *** period (as such term is defined in Annex
11 but is greater than the Minimum PR for such period, the
Contractor shall pay to the Owner the penalties set forth in Annex
11, up to a maximum of ***% of the Contract Price.
|
|
(b)
|
If
the actual measured output of the Solar Park is less than
the Minimum PR for the corresponding *** period, the
Owner may elect to: (i) return the entire
Solar Park to the Contractor (or the part thereof that has achieved the
Start-Up), the Contractor then being obligated to return the entire
Contract Price paid by the Owner pursuant to this Contract and to
indemnify the Owner for damages pursuant to Clause 14.1(5), or (ii) return the Solar
Facilities causing the failure to achieve the Minimum PR to the
Contractor, the Contractor then being obligated to return the portion of
the Contract Price corresponding to such Solar Facilities and to indemnify
the Owner for damages pursuant to Clause 14.1(5) that correspond to the
returned Solar Facilities.
|
(3)
|
If
the Guaranteed PR is reached in the Production Tests for each *** period,
or if the Contractor shall have paid the required penalties for achieving
an output between the Minimum PR and the Guaranteed PR, the Parties shall
execute a certificate of agreement. The execution of such
certificate corresponding to the second *** period for the Guaranteed
Production Period shall grant the Contractor the right to require the
Owner to return the Guarantee Bond in force at the time and replace the
same with a new Guarantee Bond in an amount equal to ***% of the Contract
Price. The same provisions of this subsection shall also be
applied to the Solar Facilities, if any, that the Owner did not return in
accordance with subsection
8.4(2)(b).
|
(4)
|
The
Contractor shall not be responsible for breach of the guarantees in the
event that such failure was caused by the circumstances described in
Clause 8.3.2(5) above or by excessive failures of the grid coupled with
the disconnection of the inverters for exceeding the conditions detailed
in their technical specifications.
|
(1)
|
On
the Condition Satisfaction Date, the Contractor shall deliver to the Owner
the Performance Bond, as per the form attached hereto as Annex
7, in an amount equivalent to ***% of the Contract Price. The
Performance Bond shall guarantee the performance by the Contractor of any
payment obligation for which the Contractor is responsible from the
commencement of the Work until the date of execution of the Solar Park
Provisional Acceptance Certificate (for any reason, including but not
limited to the return of the amounts paid by the Owner, under this
Contract, and penalties or compensation for damages and losses, including
the performance by the Contractor of its obligations during the portion of
the Guarantee Period prior to the execution of the Solar Park Provisional
Acceptance Certificate).
|
(2)
|
As
a requirement for the execution of the Solar Park Provisional Acceptance
Certificate, the Contractor shall deliver to the Owner the Guarantee Bond
(in exchange for the return of the Performance Bond by the Owner), in an
amount equal to ***% of the Contract Price. The Guarantee Bond shall
conform to the form attached hereto as Annex
7 and shall guarantee the Contractor’s compliance with its
obligations during the Guarantee Period (beginning from the execution of
the Solar Park Provisional Acceptance Certificate). However, once the
Performance Tests corresponding to the second *** period of the Production
Guarantee Period have been performed and the written agreement referred to
in Clause 8.4(3) has been executed, the Contractor shall have the right to
replace the Guarantee Bond delivered to the Owner with a new Guarantee
Bond in an amount equal to ***% of the Contract
Price.
|
(3)
|
The
Performance Bond and the Guarantee Bond shall be issued by a financial
institution with a minimum “A” rating by Standard & Poor’s Corporation
or the equivalent from Moody’s Investors Services Inc., and shall be
enforceable, in whole or in part, on demand by the Owner, in the event of
the Contractor’s breach of its obligations under this
Contract.
|
(4)
|
The
delivery of the bonds provided under this section shall in no way limit
the Contractor's liability under this Contract, as the bonds only
constitute a means to guarantee the performance of the obligations assumed
by the Contractor.
|
(5)
|
If
the Contract Price is amended pursuant to Change Orders, the Contractor
must update the amount of the Performance Bond. To such end, the
Contractor must deliver to the Owner (within fifteen (15) Business Days
following the execution of the corresponding Change Order), another bond
in the updated amount, in the form attached hereto as Annex
7.
|
(1)
|
Within
forty-five (45) days prior to the passage of *** from the date of
execution of the Solar Park Provisional Acceptance Certificate, the
Contractor shall give notice thereof to the Owner in order for both
Parties to agree upon a date to analyze the status and condition of the
Solar Park (which shall not occur later than the Guarantee Period
expiration date).
|
(2)
|
If
such inspection does not reveal the presence of defects, the Parties shall
proceed to execute the Final Acceptance Certificate, at which time the
Owner shall return the Guarantee Bond to the
Contractor.
|
(3)
|
If
such inspection finds that defects are present that affect the
Contractor's obligations during the Guarantee Period, the Parties shall
sign a certificate specifying the defects, if any, that must be corrected
within a period of forty-five (45) days of the date of execution of the
corresponding certificate, or within such shorter period that the Parties
may agree upon.
|
(1)
|
The
Owner and the Contractor expressly agree that the actual transfer of
ownership of the facilities and equipment covered by this Contract will be
made, for all contractual purposes, when each of the same shall have been
paid for in full by the Owner. With respect to the solar modules, module
supports and trackers, ownership thereof will be transferred to the Owner
upon payment of the respective invoice as provided in Clause 4, whereupon
the Owner will become the owner of the solar modules, the module supports
and the trackers included in such
invoice.
|
(2)
|
Without
prejudice to the foregoing, or to the Contractor’s obligations during the
Guarantee Period, the possession and the risk of loss of the same shall
not be transferred to the Owner until the execution of the Solar Park
Provisional Acceptance Certificate.
|
(3)
|
Until
the execution of the Solar Park Provisional Acceptance Certificate, the
Contractor must repair or replace, at its own expense, any equipment,
facility or portion of Work that is lost or damaged. Further,
the Contractor must assume responsibility for the care and security of the
Site and assume responsibility for any loss, theft or damage that may
occur with respect to the Contractor’s materials or machinery or the
equipment delivered pursuant to this
Contract.
|
(1)
|
At
all times during which the Contractor continues performing work under this
Contract, the Contractor, at its own cost and expense, shall take out and
maintain in force the insurance described below with well-known and
solvent insurance companies that are legally authorized to issue policies
in Spain, on terms and conditions of coverage satisfactory to the Owner
and the Insurance Advisor:
|
|
a)
|
Occupational
Accidents or Social Security Insurance for all its own personnel or for
the personnel of the Subcontractors as is legally required during the
effective period of the Contract.
|
|
b)
|
Mandatory
Civil Liability Insurance and Voluntary Civil Liability Insurance for the
Circulation of Vehicles and Machinery, pursuant to the limits and
conditions mandated by the Legislation in force during the effective
period of the Contract.
|
|
c)
|
Civil
Liability Insurance covering all activities of the Contractor and the
Subcontractors necessary to complete the Work, with a limit of not less
than €1,500,000 per occurrence.
|
|
d)
|
Transportation
Insurance covering the transportation of material and machinery to the
Site, with a limit of not less than the aggregate value of the transported
goods.
|
|
e)
|
All-Risks
Construction and Assembly Insurance, which will specifically include theft
and vandalism at the Site, from the unloading of the material at the Site
until the transfer of ownership of the Solar Park, including the testing
period and covering a maintenance period of not less than 12 months, with
an insured amount not less than the Contract
Price.
|
(2)
|
The
contracting of insurance provided in this clause shall in no event limit
the liabilities of the Contractor under this Contract. Additionally, the
amounts established as an insurance deductible in each of the insurance
policies shall be borne by the Contractor, unless the loss is attributable
to the Owner.
|
(3)
|
The
Owner may require that the Contractor deliver documentation evidencing the
contracting of the insurance set forth under this Clause to verify
compliance therewith and/or for verification by the Insurance Advisor, and
the Contractor undertakes to make such documentation available to the
Owner as soon as possible.
|
(1)
|
Neither
Party shall be deemed liable for the breach of any of its obligations to
the extent that the performance of such obligations is delayed or becomes
impossible as a consequence of Force
Majeure.
|
(2)
|
For
the purposes of this Contract, events of Force Majeure shall be
deemed to be the events described in Article 1105 of the Civil Code,
provided that they actually prevent compliance by the party invoking it
from complying in whole or in part with its obligations under this
Contract. The Parties expressly agree that the discovery of archeological
ruins at the Site shall be considered an event of Force Majeure for
purposes of this Contract (without prejudice to the changes, if any, that
the Parties may agree to in accordance with subsection (11) below and the
consequences set forth therein). By way of example and not limitation, the
Contractor may not invoke the following as an event of force
majeure:
|
|
(i)
|
Meteorological
conditions or phenomena that could have been reasonably foreseen by
experienced contractors operating at the
Site.
|
|
(ii)
|
Delays
or failures in obtaining materials or labor that are foreseeable or
avoidable in advance.
|
|
(iii)
|
Delays
by any Subcontractor, unless such delays are based on any of the events
specified in this clause.
|
|
(iv)
|
Strikes
or labor conflicts affecting the Contractor or the Subcontractors, unless
they are national, sector-wide or local in
scope.
|
(3)
|
The
Party affected by Force
Majeure shall give written notice to the other Party as soon as
possible within a maximum period of forty-eight (48) hours from the day on
which such Party became aware thereof, attaching to such notice all
available documents evidencing the event that is deemed to amount to Force Majeure, and an
estimation, if possible, of the expected duration thereof and its impact
on the Work
|
(4)
|
The
performance of the obligations affected by an event of Force Majeure shall be
suspended for the duration of such event, the Parties not being entitled
to damages as results of such events of Force
Majeure.
|
(6)
|
After
cessation of the event of Force Majeure, the
Parties shall agree upon the corresponding extension of deadlines (in all
cases in light of the duration of the event of Force Majeure and the
mobilization periods), or, if applicable, the measures that must be
adopted to recover, in whole or in part, the time lost so as to preserve
such dates, if possible. The contractual obligations not affected by Force Majeure must be
met within the deadlines that were in force prior to the occurrence of the
event of Force
Majeure.
|
(7)
|
In
any event, upon cessation of the event of Force Majeure, the
Parties shall take all reasonable measures within their power to resume
performance of the obligations under the Contract under optimal conditions
and with the least possible delay.
|
(8)
|
The
expenses incurred as a consequence of the repair, replacement or
adjustment of the items damaged by the events of Force Majeure shall be
borne by the party bearing the risk of loss for such elements at the time
of occurrence of the event of Force
Majeure.
|
(9)
|
In
the event that an event of Force Majeure prevents
a Party from complying with a payment obligation required by the Contract,
such payment obligation shall not be waived and the other Party may
suspend performance of its obligations under the Contract. Such
occurrence shall not give either Party a right to indemnification for
damages, without prejudice to any interest for delay in payment that might
apply.
|
(10)
|
The
Party claiming the Force
Majeure event shall immediately notify the other Party of its
cessation. Within seven (7) calendar days following the
cessation of the Force
Majeure event, the Parties shall meet to agree and assess the
effects that such situation caused. Such agreement shall be
documented in a certificate signed by both Parties describing the changes
to the contractual conditions.
|
(11)
|
In
the event that archeological ruins are discovered at the Site, but the
Work may be continued by reducing the size of the Solar Park, the number
of Solar Facilities, or by implementing a reconfiguration of the technical
configuration of the Solar Park, the Parties shall meet to agree on such
changes and shall execute a certificate describing the changes to the
contractual conditions. In any event, if the change entails a
reduction in the capacity of the Solar Park, or in the number of Solar
Facilities, thus requiring a reduction of the Contract Price, the Owner
shall have the right to withhold from the remaining Payment Milestones
payable after the change, the portion of the Contract Price previously
paid by the Owner that corresponds to the Solar Facilities or the
equipment affected by the reduction and which, consequently, were not
delivered by the Contractor under this
Contract.
|
(1)
|
The
Owner may at any time give written notice to the Contractor ordering the
immediate suspension of the Solar Park, in whole or in part, for any of
the following reasons:
|
|
a)
|
If
the Contractor is performing the Work in a defective or inappropriate
manner or not adhering to uses and practices customary for projects of
this type or as established under this Contract, provided that the
Contractor does not cure such defects within a reasonable period granted
by the Owner.
|
|
b)
|
If
the means and methods used by the Contractor are not appropriate to ensure
the performance of the Work in accordance with safety standards, avoiding
damage to people and things, provided that the Contractor does not cure
such defects within a reasonable period granted by the
Owner.
|
|
c)
|
If
the means and methods used by the Contractor are not appropriate to ensure
the performance of the Work in accordance with quality control
requirements, provided that the Contractor does not cure such defects
within a reasonable period granted by the
Owner.
|
|
d)
|
If
the Contractor fails to comply with the instructions issued by the
Governmental Authorities for the execution of the Work, to the extent that
this may affect the authorizations granted or requested or the successful
achievement of the purpose of the
Contract.
|
(2)
|
The
order providing for the suspension of the Work shall specify in writing
the portion thereof that is being suspended, the grounds for suspension,
the effective date of suspension and the date provided for the resumption
of the Work (if applicable).
|
(3)
|
In
all the cases provided in subsection (1) above, except for the ones
mentioned in subsection (e), the suspension shall last for all the time
required and until the Contractor cures the circumstances that gave rise
to the suspension of the Work. Additionally, in none of such cases shall
the Contractor be entitled to any additional payment whatsoever or to the
extension of the periods provided in the Implementation Schedule, except
in the case mentioned in subsection (e), where the Contractor shall be
entitled to an extension of the deadlines provided in the Implementation
Schedule for a period at least equal to the suspension period and to be
compensated for the costs resulting from the repair, replacement or
adjustment of the items damaged during the suspension period and the costs
arising from the suspension and resumption of the
Work.
|
(4)
|
If
the suspension lasts for a period in excess of one hundred and eighty
(180) days, and the reasons are not attributable to the Owner, the
Contractor shall reserve the right to terminate the Contract upon the
terms of Clause 14.1.
|
(1)
|
The
Contractor shall be entitled to temporarily suspend the Work as provided
under this Contract, applicable law and in the event that the Owner incurs
a delay in excess of thirty (30) days in the payments owing to the
Contractor, as regards the expiration dates of the relevant
invoices. In such event, the Owner shall pay to the Contractor
its expenses arising from the suspension (including the costs resulting as
a consequence of the repair, replacement or adaptation of the damaged
elements during the suspension period and the costs arising from the
suspension and resumption of the Work) and the Parties shall agree upon an
extension of the deadlines for performance based on the effects of the
suspension thereon.
|
(2)
|
If
the suspension for a cause attributable to the Owner (including the one
provided under subsection 13.1(1)(e) above) lasts for more than three (3)
months or during several consecutive periods totaling more than three (3)
months, the Contractor shall be entitled to terminate the Contract upon
the terms of Clause 14.2.
|
(1)
|
In
the event of suspension, interruption or stoppage of the Work, in whole or
in part, ordered by any judicial or governmental authority, or by the
Owner or Contractor following the instructions of any judicial or
governmental authority, the financial and contractual consequences of the
delay shall be borne by the party that is responsible for performance
where the failure to perform or incorrect performance triggered the
judicial or governmental action.
|
(2)
|
If
such suspension, interruption or stoppage does not result from the actions
or omissions of any of the Parties, the periods of the Implementation
Schedule shall be extended for a period at least equal to the one during
which the situation subsisted, and the Owner shall pay to the Contractor
the duly verified costs incurred as a result of such interruption. The
Contractor undertakes to act diligently to minimize such
costs.
|
(3)
|
If
the suspension ordered by any judicial or governmental order, or by the
Owner or the Contractor following the instructions of any judicial or
governmental authority, extends for more than six (6) months, either of
the Parties will be entitled to terminate the Contract upon the terms of
Clause 14.2.
|
|
a)
|
The
dissolution or merger (provided it involves a change in control) of the
Contractor ***, or when a substantial portion of the assets of the
Contractor *** is transferred to another company, provided that such
circumstances seriously prejudice the Contractor’s *** capacity to perform
the obligations under this
Contract;
|
|
b)
|
The
voluntary filing by the Contractor of a bankruptcy petition or the
allowance of a bankruptcy petition by a third party against the Contractor
(or any equivalent action in accordance with the insolvency legislation
applicable to the Contractor), or in the case of clear financial
difficulties that prevent the Contractor from normally complying with
obligations arising under the Contract, unless its obligations are
sufficiently guaranteed under this Contract. The occurrence of the same
events as regards *** shall also be grounds for
termination.
|
|
c)
|
If
the Contractor assigns or subcontracts the Contract, in whole or in part,
without complying with the conditions set forth in this
document.
|
|
d)
|
If
the Contractor fails to comply with its obligations involving the
contracting and maintenance of the insurance provided under the Contract
in a manner that might endanger coverage under the relevant
policies.
|
|
e)
|
If
the Contractor has been assessed penalties for failure to achieve the
Production Guarantee beyond the maximum limits, if applicable, provided
under this Contract.
|
|
f)
|
The
Contractor has interrupted the Work or a substantial portion thereof or
has abandoned the Solar Park for a period exceeding twenty (20) calendar
days without the Owner’s authorization, or in the case of interruptions
for an aggregate duration of more than thirty (30) days within the same
calendar year, provided that the interruptions do not arise from a
suspension of the Work provided under Clause
13.2.
|
|
j)
|
If
there is any other material breach of the obligations assumed by the
Contractor under this Contract.
|
|
k)
|
Any
other serious breach of a principal obligation of the Contractor that
might affect or prevent the successful conclusion of the Contract, or that
is expressly designated herein as grounds for
termination.
|
(2)
|
Upon
the occurrence of any of the above events, the Owner may elect to
terminate the Contract, in whole or in part, with respect to the Solar
Facilities for which the Provisional Acceptance Certificate of a Facility
has not been issued as of the date of notice of termination, (or, for the
circumstance set forth in paragraph (g) , as of the date set forth in such
paragraph) except to the extent that before such date the Solar Facility
Provisional Acceptance Certificate has been executed for at least hundred
(100) Solar Facilities. In such a case the Owner may only terminate the
Contract with respect to the Solar Facilities for which the Solar Facility
Provisional Acceptance Certificate has not been executed. However, if the
number of Solar Facilities for which the Solar Facility Provisional
Acceptance Certificate has been executed is over hundred (100) Solar
Facilities, the Owner may elect to terminate the Contract with respect to
the entire Solar Park if one of the termination events set forth in
subsections a) or b) has occurred and the Owner reasonably believes that
such circumstances pose a material prejudice or risk to the performance of
the Contractor’s obligations under this Contract during the Guarantee
Period. The foregoing shall not apply if the Contractor has
provided equipment guarantees, satisfactory to the Owner, sufficient to
ensure proper maintenance and replacement of the Solar Park during the
Guarantee Period and the Contractor has assigned such guarantees to the
Owner pursuant to the terms of this
Contract.
|
|
The
above shall not prejudice the Owner’s option to return the Solar Park in
its entirety upon the occurrence of the circumstance set forth in Clause
8.4(2)(b).
|
(3)
|
Upon
the occurrence of any of the above events, the Owner shall give the
Contractor a period of thirty (30) days to remedy the event, or any other
longer period that may be agreed upon by the Parties. If within such
period the Contractor fails to remedy such grounds for termination to the
Owner's satisfaction, the Contract shall be terminated (in whole or in
part, as applicable). For clarification purposes, it is noted
for the record that in no event will the remedy period provided herein be
applicable to the circumstances provided in subsections (1)(b), (e), (f)
and (g) of this Clause.
|
(4)
|
In
the event of a termination of the Contract (in whole or in part) under
this subsection, the following shall occur (without prejudice to the
provisions of subsection (6)):
|
|
(i)
|
In
the event of partial
termination, only as to some Solar Facilities in the Solar Park,
the Contractor shall be obligated to return to the Owner the portion of
the Contract Price that it charged for the affected Solar Facilities and
shall be obligated to pay indemnification for any damages pursuant to
subsection (5) below. The Contractor shall recover ownership of the
property comprising such Solar
Facilities.
|
|
(ii)
|
In
the event of complete
termination, the Contractor shall be obligated to return the
aggregate Contract Price charged by the Contractor, and shall be obligated
to pay indemnification for any damages pursuant to subsection (5) below.
The Contractor shall recover ownership of all the property delivered to
the Owner.
|
(5)
|
Upon
the occurrence of either two events described in the preceding subsection,
the Contractor shall be obligated to pay indemnification to the Owner for
damages, including:
|
|
(i)
|
The
Financial Costs associated with the affected Solar Facilities or the
entire Solar Park, as applicable. “Financial Costs” shall
be understood to mean all costs, expenses, fees (whether up-front, early
termination or of any other type) and interest paid by the Owner in
respect of the financing documents entered into by the Owner with the
Financing Institutions, including cancellation or breakage fees for any
interest rate swap agreements entered into by the Owner with the Financing
Institutions.
|
|
(ii)
|
The
costs, expenses and damages incurred by the Owner as a result of, or with
respect to, the early termination or the breach by the Contractor, duly
certified by the Owner, (including costs to be paid by the Owner, if
applicable, for the termination of the surface right that the Owner has
entered into for using the Site) plus ***% of the part of the Contract
Price that corresponds to the affected Solar Facilities in the event of a
partial termination (or of the Contract Price in the event of total
termination), to cover permitting
costs.
|
(6)
|
Notwithstanding
the provisions of subsections (4) and (5), if the Owner had the right to
terminate the Contract, in whole or in part, as a result of the failure to
achieve Start-Up prior to September 29, 2008, the Owner may not elect to
return the affected Solar Facilities for which the Solar Facility
Provisional Acceptance Certificate has been executed before October 31,
2008, provided that prior to September 29, 2008 the Contractor pays to the
Owner an amount that is sufficient to (i) restore the Debt Service
Coverage Ratio to the Base Case (as defined in the financing documents
referred to in Clause 14.1(5)(i)) agreed to by the Financing Institutions
and the Owner in such financing documents, and (ii) cover the loss of
profitability for the Owner’s shareholders, taking into account the
tariffs which will be received by the Owner from the sale of power from
the Solar Park.
|
|
(i)
|
the
amount that should be paid by the Contractors has not been paid before
September 29, 2008, or
|
|
(ii)
|
the
amount having been paid, the Solar Park Provisional Acceptance Certificate
has not been executed before October 31,
2008.
|
(7)
|
The
Contractor is required to pay the amounts referred to in subsections (4)
and (5) above to the Owner within *** days of the date of settlement of
the amounts owed.
|
(8)
|
In
all the foregoing instances, the Owner may, without prejudice to the
reservation of rights to take all legal action to which it is entitled for
the defense of its rights, adopt any or all of the following
measures:
|
|
a)
|
Offset
any payments pending in favor of the Contractor by an amount equivalent to
the balance in favor of the Owner (returning, in the event of complete
termination, the Performance Bond, once such offset has been
made).
|
|
c)
|
Withhold
the Contractor’s materials, machinery and items belonging to the
Contractor that are in the possession of the Owner, until the Contractor
has fully paid all amounts due as a consequence of the
termination.
|
|
(i)
|
The
voluntary filing by the Owner of a bankruptcy petition or the allowance of
a bankruptcy petition filed by a third party against the Owner, or in the
event of patent financial difficulties that would prevent the Owner from
normally complying with the obligations arising under this Contract in
cases different from the one provided under subsection (ii) below, unless
its obligations are sufficiently guaranteed under this
Contract.
|
|
(ii)
|
A
delay in payment for a period in excess of sixty (60) days from the date
on which payment should have been
made.
|
|
(iii)
|
Any
other serious breach of a principal obligation of the Owner that might
affect or prevent the successful conclusion of the Contract, or that is
expressly designated herein as grounds for
termination.
|
|
(iv)
|
A
suspension of the works and services for causes attributable to the Owner
for a period greater than three (3)
months.
|
|
(v)
|
The
dissolution of the Owner, or if a substantial portion of the assets of the
Owner is transferred to another company, and such circumstance seriously
prejudices the Owner’s capacity to perform the obligations set forth in
this Contract.
|
(2)
|
The
Contractor shall give to the Owner a period of thirty (30) days to cure
the event, or any other longer period that may be agreed upon by the
Parties. If the Owner fails to remedy such grounds for termination to the
Contractor's satisfaction within such period, the Contract shall be
terminated (in whole or in part, as
applicable).
|
|
(ii)
|
Pay
to the Contractor the value of the Work performed before termination and
which is not yet included in the invoices. Accordingly, the Owner must pay
to the Contractor the cost of the equipment already delivered to the
Contractor or that it is legally required to accept under the contracts
entered into with its suppliers and manufacturers, which shall become the
property of the Owner if they had not already become
so.
|
|
(iii)
|
Pay
all duly authenticated damages that are sustained by the Contractor as a
consequence of the contractual breach or early termination, including
direct demobilization costs.
|
(4)
|
Upon
the Owner’s compliance with the conditions set forth in the above
subsection, the Contractor shall abandon the Site within a period of
thirty (30) days and the Owner may complete the Work by itself or with
another contractor, the Owner being entitled to request the Contractor to
assign each and every contract signed by the Contractor and its
subcontractors (except contracts entered into for the supply of
solar modules, supports and trackers or for the supply of technology and
software, which the Owner may not assume). The Contractor is obligated to
cooperate in good faith with the Owner to effect such
assignments.
|
(1)
|
The
Contractor may not assign or transfer to third parties, in whole or in
part, the economic, commercial or financial rights or credits arising
under this Contract, or engage in any other transaction involving any type
of disposition, encumbrance, commitment and/or transaction, in whole or in
part, regarding such rights and credits, unless it has obtained the prior
written approval of the Owner. An assignment to other companies within the
Contractor’s group that have the same technical capacity to perform the
contractual obligations and that satisfy the requirements of the Direct
Agreement is permitted, ***.
|
(2)
|
The
Owner may only assign all or a portion of the rights and obligations
arising under this Contract in favor of the Financing Institutions in
accordance with Clause 17, or to any other third party with the prior
written approval of the Contractor.
|
|
(i)
|
All
the subcontracts executed (except the contracts entered into for the
supply and manufacture of solar modules, supports and trackers or for the
supply of technology and software, which Owner may not assume) and all
guarantees obtained from any of the suppliers or Subcontractors may be
assigned at the request of the Owner in the event of termination of this
Contract. For such purpose, the Contractor irrevocably undertakes to
assign to the Owner and the Financing Institutions the rights arising from
all the guarantees and subcontracts obtained from Authorized
Subcontractors upon the expiration of the Guarantee Period or in the event
of termination of the Contract.
|
|
(ii)
|
The
guarantees or subcontracts executed by the Contractor with Subcontractors
or suppliers shall be consistent with the terms and provisions of this
Contract.
|
|
(iii)
|
The
Contractor shall deliver to the Owner, within a reasonable period after
the request thereof, a copy without prices or other commercial terms, of
all the contracts, agreements and guarantees signed with the
Subcontractors (containing the waiver referred to in subsection (3)
below).
|
|
(iv)
|
Works
relating to the Evacuation Line may only be subcontracted with the major
subcontractor of medium voltage mentioned in Annex
8.
|
(2)
|
In
no event shall a contractual relationship be implied among the
Subcontractors and the Owner. The Contractor shall remain liable for all
of the activities of its Subcontractors and suppliers and for all
contractual and labor obligations arising from the performance of their
work; as well as for the actions, failures and negligence of any of its
subcontractors or suppliers and the agents and employees thereof, under
the same terms and conditions as if committed or performed by the
Contractor itself, its agents or
employees.
|
(3)
|
The
Owner shall not be liable vis-à-vis any Subcontractor or supplier, or
vis-à-vis their employees, for any claims arising directly or indirectly
from the Contract. For such purpose, the Contractor undertakes to procure
an express and written waiver of the rights conferred by Article 1597 of
the Civil Code from each
Subcontractor.
|
(1)
|
The
Parties shall have the obligation to provide indemnification for those
damages caused to the other Party as a consequence of the breach of this
Contract. The Owner’s approval of the projects, calculations, drawings or
other technical documents prepared by the Contractor, or the conduct of
inspections or Tests do not release the Contractor from such liability,
and do not imply that such liability must be shared by the
Owner.
|
(2)
|
The
Contractor shall be liable vis-à-vis the Owner for any loss or physical
damage to the equipment, materials or assets owned by the Owner or third
parties that is caused by the Contractor through the execution of the
relevant Solar Facility Provisional Acceptance Certificate, and thereafter
only when the Contractor is within the Site performing the Work, repairs
or similar activities and causes the relevant
damage.
|
(3)
|
By
application of Article 1596 of the Civil Code, it is expressly agreed that
the Contractor shall also be liable for damages caused by the persons or
entities employed by the Contractor in the performance of the Work,
whether as employees, technicians, subcontractors or otherwise, from whom
the same diligence owed by the Contractor shall be
required.
|
(4)
|
The
Parties expressly agree that in no event will a Party be liable for the
so-called consequential or indirect damages, including loss of profits and
loss of output, loss of use or loss of any contract or other damages that
are considered to be indirect, except for cases involving willful
misconduct or gross negligence, and without prejudice to the Contractor's
obligation to pay the penalties agreed upon under this
Contract.
|
(5)
|
The
Parties agree that any indemnity received by one of the Parties as
beneficiary of any of the insurance taken out by them in connection with
the Solar Park will be deducted from the respective claim for damages or,
if such indemnity holds the Party in question harmless from the damages
sustained, it shall bar such Party from claiming damages and require it to
refund the excess, if any. The Party causing the damages shall
bear all deductibles, liability limits and any other deductions affecting
the indemnities payable to the damaged Party by the insurance companies
providing the insurance in accordance with the provisions
hereof.
|
(6)
|
The
maximum total liability of the Contractor hereunder shall not exceed, in
the aggregate, an amount equal to *** (***%) percent of the Contract
Price. The foregoing shall not affect to the Contractor’s obligation to
make payments under Clause 14.1 in the event of the termination or partial
termination of the Contract.
|
|
(i)
|
the
possibility that the Owner’s rights under this Contract may be fully or
partially pledged or assigned as security, in one or successive instances,
to the Financing Institutions.
|
|
(ii)
|
the
possibility that “direct agreements” that provide the Financing
Institutions with “step-in” rights will be executed in the form agreed to
prior to the execution of this Contract and which are attached hereto as
Annex
9;
|
|
(ii)
|
the
possibility that the right to receive indemnification to which the Owner
may be entitled and which arise under the insurance policies purchased in
accordance with the terms of this Contract may be pledged or assigned as
security to the Financing Institutions (and the essential nature of
subscribing the insurance policies upon the terms of the report issued by
the Insurance Advisor in accordance with Clause
11);.
|
|
(iii)
|
that
the Financing Institutions and their advisors (including the Technical
Advisor and the Insurance Advisor and any others) have the right to access
the Site in order to inspect the performance of the work contemplated
under this Contract, upon the terms contemplated in Clause
6.2;
|
|
(iv)
|
the
Technical Advisor’s right to observe all Capacity and Production Tests and
the obligation to obtain its prior approval for the issuance of the Solar
Park Provisional Acceptance Certificate and each Solar Facility
Provisional Acceptance Certificate;
|
|
(v)
|
the
requirement to obtain the prior approval of the Technical Advisor for any
change to the terms of this Contract upon the terms contemplated
herein;
|
|
(vi)
|
the
Contractor’s obligation to pay any amounts owed to the Owner under this
Contract to the account, if any, indicated in writing by the Financing
Institutions;
|
(1)
|
The
Parties agree that this Contract and the Annexes hereto, and any written
or electronic information or documentation that any of the Parties
furnishes to the other for the performance of this Contract (including,
without limitation, technical documentation, plans, information,
procedures, patents and licenses) are confidential. Therefore, the Parties
undertake to keep the information confidential and to refrain from
disclosing, providing to third parties or using such information unless
such documentation and information (i) is known by the public without any
breach of this confidentiality commitment, (ii) has been legally obtained
from a third party, (iii) is requested by a judicial or governmental
authority, or (iv) the delivery of such documentation and information is
made in compliance with any legal obligations enforced upon the disclosing
Party.
|
(2)
|
The
Parties agree that the above shall not apply to any disclosure of
information made by any of the Parties to other entities of their Group
(within the meaning of Article 4 of Securities Market Law (Ley del Mercado de
Valores) 24/1988 of July 28), regulatory, tax or governmental
authorities, and their respective advisors and auditors, internal or
external, in relation to the information requested by them for the
development of the investigations, assessments and works carried out by
them, provided that, in each and every one of such cases, the parties
receiving the confidential information have assumed commitments of
confidentiality vis-à-vis the disclosing party on terms similar to this
one. In this case, such entities, authorities, advisors or auditors shall
have free access to the books, files, documents and information held by
the requested Party, and prior authorization is therefore not required
from the other Parties to furnish information to such entities,
authorities, advisors and/or auditors regarding this Contract and the
Annexes hereto and any other information or written documentation relating
hereto.
|
(3)
|
In
particular, the Owner is authorized to transmit information regarding this
Contract to the Owner and the Financing Institutions and to those
investors with interests in the construction and commercial operation of
the Solar Park who reasonably request information with respect to this
Contract (including any entity belonging to the same group than AIG
Financial Products Corp.), provided that they have assumed vis-à-vis the
provider of such information confidentiality undertakings upon terms
substantially similar hereto. Further, the Owner hereby
authorizes the Contractor to provide such information to the Financing
Institutions;
|
(4)
|
The
confidentiality commitment must be observed until the passage of two (2)
years from the date of execution of the Final Acceptance Certificate or
any termination of the Contract, regardless of the cause
thereof.
|
(1)
|
All
notices and communications between the Parties for the purposes of this
Contract shall be made in writing, by certified mail, fax or courier
service, to the following
addresses:
|
(2)
|
The
Parties may change the above addresses by written notice to each other
given in the form and to the addresses mentioned
above.
|
(3)
|
Notices
shall be deemed received on the third (3rd) Business Day following the
dispatch thereof when sent by courier service (unless there is evidence of
earlier receipt) or the Business Day following the date on which there is
evidence of the receipt thereof in the case of faxes and certified
mail.
|
(1)
|
This
Contract and all issues that may arise between the Parties in relation
hereto or in connection herewith shall be exclusively governed by
generally applicable Spanish legislation, to which the Contractor and the
Owner expressly submit.
|
(2)
|
The
Parties agree that any litigation, dispute, issue or claim resulting from
the performance or interpretation of this Contract, or directly or
indirectly related hereto, shall be definitively resolved by arbitration
at law before the Civil and Commercial Court of Arbitration (Corte Civil y Mercantil de
Arbitraje (CIMA)) of Madrid in accordance with the Procedural
Regulations thereof.
|
(3)
|
The
Arbitral Tribunal shall be composed of three (3) arbitrators appointed
from CIMA’s list of arbitrators: one by the Contractor and the other by
the Owner, and the two arbitrators so appointed shall appoint the third
one, who shall act as chairman of the arbitral tribunal. Should the two
first arbitrators fail to reach an agreement on the appointment of the
third arbitrator within ten (10) Business Days following the date of
acceptance of office by the second arbitrator, such arbitrator shall be
appointed by CIMA.
|
(4)
|
The
arbitration shall be conducted, and the award shall be rendered, in Madrid
(Spain) and in the Spanish
language.
|
(5)
|
The
Parties therefore expressly waive any other jurisdiction to which they may
be entitled under Law, and commit to abide by and submit to the
arbitration award that may be
rendered.
|
(6)
|
The
Parties expressly waive any other jurisdiction that may apply and submit
to the jurisdiction of the Courts and Tribunals of the city of Madrid for
any litigation, dispute or claim that by mandate of law may not be
resolved by, or submitted to, the arbitration provided under this Clause
or, if applicable, for the formalization of the arbitration or the
enforcement of the arbitral award.
|
|
|
||
SEDWICK
CORPORATE, S.L.
|
SUNPOWER
ENERGY SYSTEMS SPAIN, S.L.U.
|
Part
|
Units
per MW
|
Total
quantity
|
Mechanical
part
|
||
Drive
bellows boot
|
0,4
|
6
|
Ground
braids, torque tube to pier
|
5
|
75
|
Module
mounting assemblies
|
5
|
75
|
MC
connectors
|
5
|
75
|
Actuator
(endless screw)
|
0,2
|
3
|
Low
voltage
|
||
Solar
panels
|
10
|
150
|
Orientation
motor
|
0,4
|
6
|
GPS
+ PLC + clinometer
|
0,4
|
6
|
SunPower
controller (no housing)
|
0,4
|
6
|
Inverter
|
0,2
|
3
|
Communications
card for the inverter
|
0,4
|
6
|
Fuse
set for the inverter
|
0,4
|
6
|
Set
of overvoltage protective devices for the inverter
|
1
|
15
|
DC
fuses
|
5
|
75
|
Set
of overvoltage protective devices for the junction box
|
0,4
|
6
|
Junction
box
|
0,4
|
6
|
Fan
unit
|
0,4
|
6
|
Set
of sensors for the weather station
|
0,2
|
3
|
Communications
|
||
MOXA
cards
|
0,2
|
3
|
Routers,
switches, hubs, etc.
|
0,2
|
3
|
|
(ii)
|
a
maintenance agreement (the “Maintenance Agreement”)
for the performance by Contractor of the maintenance Work relating to the
Solar Park.
|
|
(i)
|
a
credit agreement in the maximum amount of [l] euros
(hereinafter, the “Credit
Agreement” or the “Loan”) with the Agent
divided in three tranches: Tranch A1 for a maximum amount of [l] euros, Tranch A2
for a maximum amount of [l] euros and Trach
B for a maximum amount of [l]
euros.
|
|
(ii)
|
an
interest rate hedge agreement (CMOF) and its corresponding Schedule with
the Agent, to cover interest rate fluctuation risks relating to the Loan
(hereinafter, the master agreement and its Schedule together with the
confirmations to be executed in connection therewith, the “Interest Rate Hedge
Agreement”).
|
III.
|
To
guarantee the Owner’s obligations under the Credit Agreement and the
Interest Rate Hedge Agreement (hereinafter, collectively, the “Guaranteed Contracts”)
the Owner has granted on even date herewith (among others) a pledge
agreement, registered as a public instrument with the Madrid Notary Mr.
[l], pursuant
to which the rights under the Construction Contract and the Maintenance
Agreement (among others) were pledged to the Financing Institutions (the
“Pledge”).
|
IV.
|
In
consideration of the premises, and as a fundamental condition to the
execution of the Guaranteed Contracts by the Financing Institutions, the
Parties have agreed to execute this Contract whereby the Contractor
assumes certain obligations to the Financing Institutions with respect to
the Construction Contract, the Maintenance Agreement and the Guaranteed
Contracts, as follows.
|
(1)
|
The
Contractor hereby pledges all rights to receive payment from the Owner
under the Construction Contract and the Maintenance
Agreement.
|
(2)
|
As
a consequence of the foregoing, except in the event of receipt of a
written notice from Agent that the Pledge has been cancelled, the
Contractor agrees:
|
|
(i)
|
not
to convey or create any type of pledge, charge, lien or other security
right over the Contractor’s rights to receive payments under the
Construction Contract or the Maintenance Agreement, without the express
prior written approval of the
Agent;
|
|
(ii)
|
not
to honor any notice or instruction from the Owner that contravenes or
modifies the terms of the Pledge or of this
Contract;
|
|
(iii)
|
to
immediately notify the Agent of any breach by the Owner of its obligations
under the Construction Contract or the Maintenance
Agreement;
|
|
(iv)
|
to
pay any amounts payable by the Contractor to the Owner under the
Construction Contract or the Maintenance Agreement to the Owner’s account
no. [l] (the
“Principal
Account”), or to such other separate account as the Agent and the
Owner may jointly specify in writing. The Contractor acknowledges and
agrees that a payment made to any other current account or made in any
other manner shall not be considered a full discharge for the
Contractor;
|
|
(v)
|
upon
receipt of written notice from the Agent declaring the enforcement of the
Pledge, to deposit or transfer all funds relating to the payment rights
under the Construction Contract and/or the Maintenance Agreement in favor
of the Agent to the account designated by the Agent in
writing.
|
(1)
|
The
Contractor agrees to provide notice to the Financing Institutions (through
the Agent) of the occurrence of any event of early termination of the
Construction Contract and/or the Maintenance Agreement, or of its own
intention to terminate either of such Contracts, by sending to the Agent a
copy of any notice sent to the Owner (which shall include, at a minimum,
the proposed date of termination of the Construction Contract and/or the
Maintenance Agreement –subject to the terms of subsection (2) below- and
the Contractor’s stated basis for such
termination).
|
(2)
|
The
Contractor acknowledges agrees that it may not, under any circumstances,
terminate the Construction Contract or the
Maintenance Agreement without first giving notice to the Agent
as provided for in the above subsection, and that, during the period from
the Agent’s receipt of such notice until fifteen (15) calendar days from
the date on which the Agent received such notice, the Agent may (but is
not so obligated), with the prior approval of the Financing Institutions
in accordance with the agreed majority voting percentages agreed to among
the Financing Institutions, take such measures as are necessary or
advisable to cure or eliminate such event of early termination under the
Construction Contract and/or the Maintenance
Agreement.
|
|
(i)
|
it
may not agree to any change to the Construction Contract or any Change
Order or any other document that contains an agreement to make the changes
contemplated by Clauses 2.4(4), 5.1(3) and 6.5(3) of the Construction
Contract without the Technical Advisor having confirmed its approval
through its express approval included in the corresponding document or
Change Order (the foregoing is without prejudice to the Contractor’s
rights under such Clauses);
|
|
(ii)
|
except
with respect to the assumed consent contemplated by Clause 4.3 of the
Construction Contract, the approval of the Technical Advisor must be
obtained in order for the Owner to approve a Payment Milestone
contemplated by such Clause;
|
|
(iii)
|
the
Technical Advisor must be present (i) to observe the performance of the
Performance Tests, the Overall Test, the Production Tests and the
inspections required for execution of the Final Acceptance Certificate, in
accordance with the notice periods set forth in Clauses 5.2 (1), 8.4(2)
and 9(1) of the Construction Contract (the periods provided for in such
Clauses may not begin to run if the Technical Advisor has not been invited
to observe within the notice periods provided in such Clauses); and (ii)
to observe the necessary inspections to verify the fulfillment of any
Technical Milestone with at least 15 days of prior notice. Results of
tests and inspections referred to in this subsection that were obtained
prior to the expiration of such periods and without the presence of the
Technical Advisor shall be invalid. However, the Technical Advisor’s
failure to attend despite having been duly invited in the manner and
within the notice periods provided for in this subsection shall not delay
the periods provided for in the Construction Contract for such tests and
inspections, nor shall it invalidate the results of the
same;
|
|
(iv)
|
except
as provided for in Clause 5.2(4) of the Construction Contract, the
execution of the Solar Facilities Provisional Acceptance Certificates, the
Solar Park Provisional Acceptance Certificate, and the Final Acceptance
Certificate must be accompanied by the approval of the Technical
Advisor;
|
|
(v)
|
the
Technical Advisor shall have the power the inspect the Site on the same
terms, and subject to the same restrictions, to which the Owner is
entitled under Clause 6.2 of the Construction
Contract;
|
|
(vi)
|
the
Technical Advisor must approve quality controls for the solar modules and
has the authority to inspect such quality controls in order to confirm its
approval; and
|
|
(vii)
|
the
Financing Institutions should have been approved, if applicable, the
necessary amount to restore the Debt Service Coverage Ratio to the Base
Case set forth in Clause
14.1(6).
|
|
(i)
|
it
may not agree to any change to the Maintenance Agreement or any Change
Order or any other document that contains an agreement to make the changes
contemplated by Clause 2.4 of the Maintenance Agreement without first
receiving the prior approval of the Financing Institutions (the foregoing
is without prejudice to the Contractor’s rights under such Clause
2.4);
|
|
(ii)
|
the
Technical Advisor must receive the data and registrations at least fifteen
(15) calendar days in advance to make the availability calculations
referred to in Clause 7 of the Maintenance
Agreement;
|
|
(iii)
|
the
Technical Advisor shall have the authority to inspect the Site on the same
terms, and subject to the same restrictions, to which the Owner is
entitled under Clause 4(ii) of the Maintenance
Agreement.
|
(1)
|
Except
as otherwise expressly provided for, all notices and communications
between the Parties for the purposes of this Agreement shall be made in
writing, by certified mail, telegram with confirmed receipt, or for urgent
matters, by fax with a confirmation letter to be sent within the following
five (5) calendar days.
|
(2)
|
All
notices, requirements or other communications to the Financing
Institutions must be delivered to the Agent (notice to the Financing
Institutions shall be considered effective upon receipt by the
Agent).
|
(4)
|
Any
changes to the above addresses must be communicated to the other Parties
by certified mail, and shall only take effect as of the date that the
other Party receives such notice.
|
|
|
||
SEDWICK
CORPORATE, S.L.
|
SUNPOWER
ENERGY SYSTEMS SPAIN, S.L.U.
|
||
|
|||
WESTLB
AG, SUCURSAL EN ESPAÑA
|
This ‘10-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
1/31/12 | 4, 8-K | |||
1/31/09 | ||||
10/31/08 | ||||
9/29/08 | 4, 8-K | |||
7/15/08 | 4 | |||
Filed on: | 3/3/08 | |||
For Period End: | 12/30/07 | NT 10-K | ||
10/10/07 | 4, 8-K, SC 13G, SC 13G/A | |||
2/27/07 | 4 | |||
11/28/06 | 4 | |||
7/25/06 | 4 | |||
List all Filings |