Engineering, Procurement And Construction Agreement

Exhibit 10.6

***CONFIDENTIAL TREATMENT REQUESTED CONFIDENTIAL PORTIONS

OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN

SEPARATELY FILED WITH THE COMMISSION***

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

Dated as of March 26, 2007

by and between

Agrupacif3n Solar Llerena-Badajoz 1, A.I.E.,

as Owner

PowerLight Systems S.A.,

as Contractor and

Solarpack Corporacif3n Tecnolf3gica, S.L.


1


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

TABLE OF CONTENTS


1.

Definitions. 5

2.

Scope. 10

3.

Representatives. 10

4.

The Work. 11

5.

Inspection. 18

6.

Final Completion. 18

7.

Changes and Extra Work. 18

8.

Protective Measures. 19

9.

Force Majeure. 20

10.

Unanticipated Conditions. 20

11.

Termination. 20

12.

Labor. 25

13.

Commencement and Substantial Completion of Work. 26

14.

Reports. 28

15.

Subcontractors and Suppliers. 28

16.

Ownership of Plans, Data, Reports and Material. 30

17.

Contract Price. 30

18.

Payment. 31

19.

Suspension of the Work. 32

20.

Taxes. 33

21.

Owner Obligations. 33

22.

Representations and Warranties. 33

23.

Warranty. 35

24.

Insurance. 37

25.

Indemnity. 38

26.

Performance of the Work. 39

27.

Compliance with Applicable Laws. 40

28.

Hazardous Materials. 40

29.

Governing Law. 41

30.

Liens. 41

31.

Nonwaiver. 41

32.

Dispute Resolution. 41

33.

Notices and Demands. 44

34.

Nondisclosure. 45

35.

Time of Essence. 45

36.

Validity. 45

37.

Survival. 45

38.

Binding Effect. 46

39.

No Oral Modifications. 46

40.

Headings. 46

41.

Counterparts. 46

42.

Authority. 46

43.

Announcements and Publications. 46

44.

Complete Agreement. 46


2


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

45.

No Agency. 47

46.

Priority of Documents. 47

47.

Assignment. 47

48.

Waivers. 47

49.

Public deed. 48

50.

Language and documentation. 48

51.

Days. 48

Schedules Schedule 1A -

Construction and Milestone Payment Schedule Schedule 1B -

Field Extra Work and Authorizations, Change Orders Schedule 4.1 -

Technical Specifications, Statement of Work and Bill of Materials Schedule 4.2 -

Declaracif3n de Impacto Ambiental Schedule 4.6 -

Substantial Completion Commissioning Plan for Units and Park Schedule 13.1 -

Preliminary Project Schedule Schedule 23 (a) -

Unit Warranty Schedule 23 (b) -

Model of Letter of Credit Schedule 23.4 -

Model of Comfort Letter Schedule 24 -

Insurance


3


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT This ENGINEERING, CONSTRUCTION AND INSTALLATION AGREEMENT, dated as of March 26, 2007 (" Agreement" ), is executed in Seville (Spain) by and between Agrupacif3n Solar Llerena-Badajoz 1, A.I.E., an " agrupacif3n de intere9s econf3mico" formed under the laws of Spain (" Owner" ), PowerLight Systems S.A., a corporation formed under the laws of Switzerland (" Contractor" ), and Solarpack Corporacif3n Tecnolf3gica, S.L. (" Solarpack" ), a limited liability company duly incorporated under the laws of Spain. RECITALS:

WHEREAS, Solarpack is a developer of projects pursuing the creation of solar photovoltaic (" PV" ) parks in Spain owned by individual equity investors (" Investors" ) that will each own installations of no more than 100 kW AC nominal inverter rating, which is equivalent to approximately 120kWp DC nameplate rating of PV modules; and

WHEREAS, Contractor designs and builds PV installations and as such is able to engineer and construct solar PV parks consisting of a field of PV modules, inverters, trackers and all the necessary ancillary systems to make available electric energy to the utility grid; and WHEREAS, Solarpack has collected equity from the Investors 1 and has incorporated Owner, and acts as agent of Owner for the purposes of organizing and supervising the construction and operation of the Park; and

WHEREAS, Owner leases or owns facilities in the municipality of Llerena, (Badajoz), Spain as more fully described in Schedule 4.1 hereto (the " Site" ); and

WHEREAS, Owner desires to engage Contractor to supply and install at the Site a PV park divided in installations of no more than 100 kW AC nominal inverter rating. As used in this Agreement, " Unit" shall mean each of such independent PV module installations of 120kWp and 100kWe to be supplied and installed by Contractor at the Site pursuant to the provisions of this Agreement, each of which meet the requirements of the Spanish legislation to earn the feed-in tariff. As used in this Agreement, " Park" shall mean the aggregation of forty (40) Units which will be located at the Site that share a common fence and security infrastructure with an aggregated power of 4.8 MWp (4 MWe). The scope of this Agreement is limited to the Park, as described in Schedule 4.1 hereto; and

WHEREAS, Contractor desires to provide such supply and installation services, all in accordance with the terms and conditions set forth in this Agreement; and

1 This EPC and its Annexes shall be disclosed to the Investors provided that such Investors have executed a confidentiality agreement agreed by PowerLight and Solarpack.

4


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT:

1. Definitions .

Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the respective meanings set forth in this Section 1; (b) the singular shall include the plural and vice versa; (c) the word " including" shall mean " including, without limitation" , (d) references to " Sections" , " Schedules" and " Exhibits" shall be to sections, schedules and exhibits hereof; (e) the words " herein" , " hereof" and " hereunder" shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time.

" Agreement" shall have the meaning set forth in the preamble.

" Applicable Law" shall mean, with respect to any Governmental Authority, any constitutional provision, law, directive, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority.

" Applicable Permits" shall mean each and every European, national, autonomic, regional and local license, authorization, certification, filing, recording, permit or other approval with or of any Governmental Authority, including, without limitation, each and every environmental, construction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of the Work or operation of the Units.

" Bank" shall mean the agent appointed by the financing entities which are financing the Work on a project finance basis by virtue of a facility agreement executed between Owner and such financing entities, a copy of which has been delivered to Contractor prior to the Effective Date. " Change Order" shall mean a written document signed by the Owner and Contractor authorizing an addition, deletion or revision to the Work or an adjustment of the Contract Price or Construction and Milestone Payment Schedule issued after execution of this Agreement.

" Condition Precedent" shall mean the fulfillment by Owner of the following conditions precedent for each Unit of the Park:


5


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION*** (a) Owner has submitted to Contractor a copy of the execution version of the facility agreement entered into between Owner and the Bank, among others, to finance the construction of the Park;

(b) Owner has submitted to Contractor a certificate issued by the Bank confirming (i) that the conditions precedent for the availability of the full project funding (including the disbursement of equity by the Investors) and the drawdowns under the facility agreement executed between Owner and the Bank, among others, have been fulfilled, and (ii) that the Bank has received the final version of the legal due diligence report issued by the legal advisor to the Bank confirming all the Applicable Permits which may be required to commence the construction of each Unit of the Park (other than the Operational Permits) have been obtained and are in full force and effect; and

(c) Owner has submitted to Contractor a copy of the Applicable Permits which may be required to commence the construction of each Unit of the Park (other than the Operational Permits).

" Construction and Milestone Payment Schedule" shall mean the schedule for prosecution of, and payment for, the Work, in each case as set forth on Schedule 1A .

" Contract Documents" shall mean this Agreement, the exhibits and schedules hereto, and drawings, specifications, plans, calculations, models and designs that are part of Exhibit 1 and that have been prepared by Contractor or any Subcontractor exclusively for the Work. " Contract Price" shall mean the amount for performing the Work that is payable to Contractor as set forth in Section 17.1 , as the same may be modified from time to time in accordance with the terms hereof.

" Contractor" shall have the meaning set forth in the preamble.

" ***"

" Contractor Representative" shall mean the individual designated by the Contractor in accordance with Section 3.2 . " Developer Subcontract" shall mean the subcontract executed on the date hereof by PowerLight Systems Spain, S.L. (C.I.F. B-84795319), a Spanish subsidiary wholly-owned by Contractor, and Solarpack by virtue of which Solarpack undertakes, as Subcontractor of Contractor, to diligently prosecute and obtain *** and, in the event that Solarpack fails to timely obtain any ***.


6


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

" Disclosing Party" shall have the meaning set forth in Section 34 .

" Dispute" shall have the meaning set forth in Section 32.1 . " Effective Date" shall mean March 20, 2007.

" Equipment" shall mean (a) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required for prudent design, construction or operation of the Units in accordance with Industry Standards and (b) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto described in, required by, reasonably inferable from or incidental to the Work or the Contract Documents.

" Euribor" shall mean the Euro Monetary Market reference rate at or about eleven o' clock (11:00) a.m. (Central European Time) on the second business day immediately preceding the scheduled date for any payment under this Agreement that results from the application of the convention in force at any time, under the sponsorship of the FBE ( Federation Bancaire de l' Union Europe9ene ) and the Financial Market Association (ACI), and currently published on Reuter' s EURIBOR 01 page, or such other page that may replace it, applicable to financings with disbursement of deposits two (2) business days following the date for setting the interest rate, pursuant to the TARGET (Trans-European Automated Real-Time Gross Settlement Express Transfer System) schedule for deposits in Euros, for a period of time equal to one (1) month.

" Euro" shall mean the lawful currency of Spain.

" Final Completion" shall mean satisfaction or waiver of all of the conditions for the Park set forth in Section 6 .

" Force Majeure Event" shall mean, when used in connection with the performance of a Party' s obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents or employees or subcontractors) which is unforeseeable, or being foreseeable, unavoidable and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Agreement. In particular, any of the following shall be considered a Force Majeure Event:

(a) war (whether or not war is declared), hostilities, revolution, rebellion, insurrection against any Governmental Authority, riot, terrorism, acts of a public enemy or other civil disturbance;

(b)

acts of God, including but not limited to, storms, floods, lightning, earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic eruptions, fires, excessive winds (20 m/s) , and objects striking the earth from space (such as meteorites), sabotage or destruction by a third party (other than any contractor retained by or on behalf of the Party) of facilities and equipment relating to the


7


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

performance by the affected Party of its obligations under this Agreement; and (c) strikes, walkouts, lockouts or similar industrial or labor actions or disputes (any of them whether local, regional, national or sectorial, but only if affecting Contractor or Subcontractors or Suppliers and to the extent affecting employees working at the Site, or the logistics of the equipment or materials needed for the Works).

" Governmental Authority" shall mean any European, national, autonomic, regional, province, town, city, or municipal government, whether domestic or foreign, or other administrative, regulatory or judicial body of any of the foregoing.

" Hazardous Material" shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyl' s (" PCBs" ), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, controlled substances, objects, conditions and waste or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any federal, state or Applicable Law.

" Health and Safety Coordinator" shall have the meaning set forth in Section 3.1 .

" Health and Safety Manager" shall have the meaning set forth in Section 3.2 .

" Health and Safety Plan" shall have the meaning set forth in Section 8.4 .

" Health and Safety Study" shall have the meaning set forth in Section 8.4 .

" Indemnified Party" shall have the meaning set forth in Section 25.4 .

" Indemnifying Party" shall have the meaning set forth in Section 25.4 .

" Industry Standards" shall mean those standards of care and diligence normally practiced by solar engineering, construction and installation firms in performing services of a similar nature in jurisdictions in which the Work will be performed and in accordance with good engineering design practices, Applicable Permits, and other standards established for such Work.

" Investors" shall have the meaning set forth in the first recital. " Operational Permits" shall mean, jointly, the *** for the medium voltage infrastructure and the grid connection for each Unit, the definitive registration of each Unit within the Administrative Register of Power Facilities Included within the Special Regime ( Registro Administrativo de Instalaciones de Produccif3n de Energeda Ele9ctrica Acogidas al Re9gimen Especial, or " RAIPRE" ) and the municipal operation license for each Unit ( licencia municipal de funcionamiento ).


8


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

" Owner" shall have the meaning set forth in the preamble. " Owner' s Representative" shall mean the individual designated by Owner in accordance with Section 3.1 . " Park" shall have the meaning set forth in the sixth recital. " Park' s EPC Rated Value" shall mean the total aggregated Wp set forth in the fifth recital. " Park' s Final Rated Value" shall mean the total aggregated Wp stated in the manufacturers' Flash Test Data of the PV modules finally delivered at Substantial Completion of the Full Park.

" Party" shall mean, individually, each of the parties to this Agreement.

" Person" shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.

" Receiving Party" shall have the meaning set forth in Section 32 .

" Retention" shall have the meaning set forth in Section 18.2 . " Site" shall have the meaning set forth in the fifth recital, and is more fully described in Schedule 4.1 hereto. " Site Lessor" shall mean the counterpart of Owner under any lease agreements (or surface rights agreements) executed in connection with the Site.

" Solarpack" shall mean Solarpack Corporacif3n Tecnolf3gica, S.L. " Subcontractor" shall mean any Person, other than Contractor and Suppliers, retained by Contractor to perform any portion of the Work (including any Subcontractor of any tier) in furtherance of Contractor' s obligations under this Agreement.

" Substantial Completion" shall mean, for each Unit of the Park, satisfaction or waiver of all of the conditions set forth in Section 13.3 .

" Substantial Completion Date" shall mean the actual date on which the Substantial Completion of the Full Park, as defined in Section 13.4 , has occurred. " Substantial Completion of the Full Park" shall mean satisfaction or waiver of all of the conditions set forth in Section 13.4 .

" Suppliers" shall mean those Equipment suppliers with which Contractor contracts to build the Park.


9


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

" Technical Advisor to the Bank" shall mean the independent engineering firm appointed by Owner, which appointment shall be approved by the Bank, to supervise the completion of the commissioning tests and execute the certificates approving any commissioning test contemplated in Section 4.6 . " Technical Dispute" shall have the meaning set forth in Section 32.2 . " Unit" shall have the meaning set forth in the sixth recital. " Unit Price" shall mean the result of dividing the Contract Price between the number of Units of the Park. " Unit Warranty" shall mean the warranty of Contractor set forth on Schedule 23 . " Unit' s EPC Rated Value" shall mean 120kWp.

" Unit' s Final Rated Value" shall mean the total aggregated Wp stated in the manufacturers' Flash Test Data of the PV modules that comprise the Unit at Substantial Completion of such Unit.

" Work" shall mean all obligations, duties, and responsibilities assigned to or undertaken by Contractor and described on Schedule 4.1 with respect to each Unit of the Park.

2. Scope .

Contractor shall provide on a turnkey basis all professional design and engineering services, Equipment procurement, supervision, labor, materials, equipment, tools, construction Equipment and machinery, utilities and transportation up to the general protection cabinet (" Caja General de Proteccif3n" ) and revenue meter for each Unit, and procurement of the ***, and other facilities, items and services, in each case to the extent necessary for the proper execution and completion of each Unit, in accordance with the Contract Documents, which are each made a part hereof.

Contractor shall supervise and direct the Work in accordance with Industry Standards. Contractor shall have sole control over the engineering, design and construction means, methods, techniques, sequences, and procedures and for coordination of all portions of the Work under this Agreement unless the Agreement specifically provides otherwise.

3. Representatives .

3.1 Owner Representatives . Owner designates, and Contractor agrees to accept, Mr. *** as Owner Representative for all matters relating to Contractor' s performance of the Work (except for the execution of the certificates approving any commissioning test contemplated in Section 4.6 ). However, for the exclusive purposes of executing the certificates approving any commissioning test contemplated in Section 4.6 , Owner


10


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

unconditionally and irrevocably appoints the Technical Advisor to the Bank as its representative. Owner shall notify Contractor of such appointment in accordance with Section 33 at least one (1) month prior to the beginning of the first commissioning test contemplated in Section 4.6 . The actions taken by Owner Representative regarding such performance shall be deemed the acts of Owner and shall be fully binding for Owner.

The Owner shall appoint a coordinator for health and safety labor matters during the performance of the Work (the " Health and Safety Coordinator" ). The Health and Safety Coordinator shall perform the functions set out in Section 8.4 . Owner may, upon written notice to Contractor, pursuant to Section 33 hereof, change the designated Owner Representative, Technical Advisor to the Bank or Health and Safety Coordinator. However, the replacement of the Technical Advisor to the Bank shall be notified to Contractor at least one (1) month prior to the beginning of the first commissioning test contemplated in Section 4.6 .

3.2 Contractor Representatives . Contractor designates, and Owner agrees to accept, Mr. Marco Miller as Contractor Representative for all matters relating to Contractor' s performance under this Agreement. The actions taken by Contractor Representative shall be deemed the acts of Contractor. Additionally, before commencement of the Work on Site, Contractor shall appoint (i) as Project Manager to supervise all matters related to the performance of the Work, and (ii) a Construction Manager with the necessary experience in order to supervise the construction of the Park. The Construction Manager shall be based on the Site. The Project Manager shall be based in Spain from commencement of the Work on Site.

Not later than thirty (30) days before commencement of the Work on Site, Contractor shall appoint a health and safety manager (the " Health and Safety Manager" ) to supervise all matters related to health and safety during the performance of the Work. The Health and Safety Manager shall be in permanent contact with the Health and Safety Coordinator and shall perform his functions as set out in Section 8.4 .

Contractor may, upon written notice to Owner, pursuant to Section 33 hereof, change the designated Contractor Representative or the Health and Safety Manager.

3.3 The Parties shall vest their Representatives with sufficient powers to enable them to assume the obligations and exercise the rights of Contractor or Owner, as applicable, under this Agreement. 3.4 Notwithstanding Sections 3.1 and 3.2 , all amendments, Change Orders, notices and other communications between Contractor and Owner contemplated herein shall be delivered in writing and otherwise in accordance with Section 33 .

4. The Work .

11


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

4.1 Subject to Section 21 , Contractor shall perform the Work in accordance with the express description thereof in Schedule 4.1 . In particular, the Work shall include the following:

(i) *** and obtaining and maintaining in force all insurances identified as Contractor' s responsibility on Schedule 24 . (ii) Basic and detail engineering (preliminary design and system design engineering). The Geotechnical, Hidrologic and Topographic Studies have been delivered to Contractor by Owner.

(iii) Civil works, Site grading, landscaping, foundations and all necessary earth and other preparatory work if required to prepare the part of the Site where the Park is located.

(iv) Supply and manufacture of Equipment and materials, including the supply and manufacture required for erection, installation and operation of the Units at the Park including, but not limited to, PV modules, inverters, GPT-0 PowerTracker components and steel, GPT-0 PowerTracker construction *** and electrical subcontractors. The Work shall include up to the general protection cabinet (" Caja General de Proteccif3n" ) and revenue meter for each Unit, which are included within the scope of the Work but which constitute the limit of such scope. Technical Specifications are attached as Schedule 4.1 .

(v) Monitoring systems as specified in Schedule 4.1 .

(vi) Up to two (2) days per Site of on-site operation and maintenance training of Owner' s personnel (which shall be the same personnel for any Park built by Contractor on the same Site, even if the owners of such other Parks are different from the Owner).

(vii) Supply of sufficient spare parts for the Unit Warranty period stipulated in Schedule 23.

Contractor shall supply, under this Agreement, a total number of forty (40) Units, with a total installed power of 4.80 MWp and 4 MWe. 4.2 Contractor shall perform all Work in accordance with Industry Standards and all relevant EU and national regulations and specifications, including homologation of equipment and installations to EU Directives and national standards, and all relevant specifications as contained in the Applicable Permits, especially the " Declaracif3n de Impacto Ambiental" ( Schedule 4.2 ).

4.3 Contractor shall perform engineering and design services, using qualified architects, engineers and other professionals selected and paid for by Contractor, in each case as are necessary to prepare all Contract Documents and submit the Contract Documents to Owner for its review and approval.


12


*** CONFIDENTIAL MATERIAL REDACTED AND

SEPARATELY FILED WITH THE COMMISSION***

4.4 ***. Owner shall file any documents required to obtain any necessary Applicable Permits and obtain all such Applicable Permits ***. Owner, at its expense, shall file any documents required to obtain such Applicable Permits on a timely basis. Owner shall pay for all taxes, fees and costs required of Owner in order to obtain the Applicable Permits for which the Owner is responsible under this Section 4.4. In particular, Owner represents and warrants to Contractor that Owner has obtained all permits, licenses and other authorizations which may be required to commence the construction of each Unit of the Park.

4.5 Contractor, at its expense, shall purchase, transport, deliver, inspect to the extent it deems necessary, and construct and install all Equip ...