EX-10.3 4 ex10_3x09302012.htm ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT ex10_3x09302012



CONFIDENTIAL TREATMENT REQUESTED

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





    




ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT



between



HIGH PLAINS RANCH II, LLC,



and



SUNPOWER CORPORATION, SYSTEMS



September 30, 2011








TABLE OF CONTENTS

Page

1.
DEFINITIONS AND RULES OF INTERPRETATION
1

 
1.1
Definitions
1

 
1.2
Exhibits
21

 
1.3
Interpretation
21

 
1.4
Headings
22

 
1.5
Conflicts in Documentation
23

 
 
 
 
2.
RESPONSIBILITIES OF OWNER
23

 
2.1
Owner Representative
23

 
2.2
Operating Personnel
23

 
2.3
Applicable Permits
23

 
2.4
Interconnection Facilities
23

 
2.5
Owner-Provided Information
23

 
2.6
Owner Performance Security
23

 
2.7
Owner's Separate Contractors
24

 
2.8
Taxes and Permit Expenses
24

 
2.9
Access to Site
24

 
2.10
Cooperation
24

 
 
 
 
3.
RESPONSIBILITIES OF CONTRACTOR
24

 
3.1
General
24

 
3.2
Performance of Work
25

 
3.3
Design and Construction of PV Power Plant
25

 
3.4
Contractor's Project Manager
25

 
3.5
Utilities and Services
25

 
3.6
Inspection
26

 
3.7
Organization
26

 
3.8
Contractor-Acquired Permits
26

 
3.9
Hazardous Materials Disposal System
26

 
3.10
Maintenance of Site
27

 
3.11
Site Security
27

 
3.12
Safety
27

 
3.13
Quality Assurance Programs
28

 
3.14
Contractor Deliverables
28

 
3.15
Training of Operating Personnel
28

 
3.16
Commissioning Personnel
28

 
3.17
***
29

 
3.18
Shipping
29

 
3.19
Davis-Bacon Act Requirements
29

 
3.20
Escrow Agreement
29

 
3.21
Subordination Agreement
29

 
3.22
Contractor Credit Support
30

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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TABLE OF CONTENTS
(continued)

Page

4.
COVENANTS, WARRANTIES AND REPRESENTATIONS
30

 
4.1
Contractor
30

 
4.2
Owner
33

 
 
 
 
5.
COST OF WORK
34

 
5.1
Contract Price
34

 
5.2
Taxes
34

 
5.3
Fiscal Agreement Costs
35

 
5.4
Cash Grant Intention and Turnover
35

 
 
 
 
6.
TERMS OF PAYMENT

35

 
6.1
Monthly Invoicing
35

 
6.2
Progress Assessment
36

 
6.3
Contractor's Invoices
36

 
6.4
Owner Review
37

 
6.5
Payments
37

 
6.6
Retention
38

 
6.7
Final Contractor's Invoice
39

 
6.8
Disputes Regarding Payments
39

 
 
 
 
7.
COMMENCEMENT AND SCHEDULING OF THE WORK; DESIGN REVIEW

40

 
7.1
Notice to Proceed
40

 
7.2
Design Review
40

 
7.3
CPM Schedule Submission
40

 
7.4
Owner Review of the CPM Schedule
41

 
7.5
Progress Reporting, Monthly Updates to CPM Schedule
41

 
7.6
Thirty Day Look Ahead Schedule
41

 
7.7
Form of Submittals
41

 
7.8
Delay Response Plan
41

 
 
 
 
8.
FORCE MAJEURE; EXCUSABLE EVENT

43

 
8.1
Certain Events
43

 
8.2
Notice of Force Majeure Event and Excusable Event
43

 
8.3
Scope of Suspension; Duty to Mitigate
43

 
8.4
Contractor's Remedies
44

 
8.5
Termination Due to Force Majeure and Excusable Event
44

 
 
 
 
9.
SUBCONTRACTORS AND SUPPLIERS
45

 
9.1
Subcontracts Generally
45

 
9.2
Use of Specified Suppliers and Specified Subcontractors
45


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TABLE OF CONTENTS
(continued)

Page

 
9.3
Assignment
45

 
9.4
Supply of Inverter Equipment
46

 
9.5
Supply of Photovoltaic Modules
46

 
9.6
Separate Owner Purchase of Photovoltaic Modules and Inverter
Equipment
46

 
 
 
 
10.
LABOR RELATIONS
47

 
10.1
General Management of Employees
47

 
10.2
Project Labor Agreement
47

 
10.3
Labor Disputes
47

 
10.4
Personnel Documents
47

 
10.5
Key Personnel
47

 
10.6
Replacement of Employees and Other Persons at Owner's Request
48

 
 
 
 
11.
INSPECTION
48

 
11.1
Inspection
48

 
 
 
 
12.
SITE CONDITIONS
48

 
12.1
Assumed Site Conditions
48

 
12.2
Additional Site Condition Information
48

 
 
 
 
13.
PERFORMANCE GUARANTEE; COMMISSIONING; TESTING
48

 
13.1
Performance Guarantee and Other Requirements
48

 
13.2
Commissioning Procedures
48

 
13.3
Performance Acceptance Test Procedures and PV Power Plant Functional
Test Procedures
48

 
 
 
 
14.
SYSTEMS, PERFORMANCE ACCEPTANCE TESTS, AND COMPLETION
49

 
14.1
System Turnover
49

 
14.2
Acceptance Tests
51

 
 
 
 
15.
BLOCK, PHASE AND PV POWER PLANT SUBSTANTIAL COMPLETION
52

 
15.1
Block Completion
52

 
15.2
Phase Substantial Completion
54

 
15.3
PV Power Plant Substantial Completion
54

 
15.4
Notice of Substantial Completion
55

 
15.5
Final Completion
56

 
15.6
Notice of Final Completion
56

 
15.7
Contractor's Access After Substantial Completion
56

 
 
 
 
16.
LIQUIDATED DAMAGES; EARLY COMPLETION BONUS
57


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TABLE OF CONTENTS
(continued)

Page

 
16.1
Delay Liquidated Damages
57

 
16.2
Bonus Payment for Early Completion
59

 
16.3
Payment of Delay Liquidated Damages and Bonus Payment
59

 
16.4
Buy-Down Not Available for Minimum Performance Guarantee
59

 
16.5
Liquidated Damages for Failure to Satisfy Performance Guarantee
59

 
16.6
Contractor Election
59

 
16.7
Extension of Cure Period
61

 
16.8
Sole Remedy; Liquidated Damages Not a Penalty
61

 
16.9
Enforceability
62

 
16.10
Achievement of Performance Guarantee; Reimbursement of Liquidated
Damages
62

 
 
 
 
17.
CHANGES IN THE WORK
63

 
17.1
Change In Work
63

 
17.2
By Owner
63

 
17.3
Adjustment to CPM Schedule Due to Force Majeure Events or Excusable
Events
63

 
17.4
Preparation of Change In Work Form
64

 
17.5
Execution of Change In Work Form
64

 
17.6
No Obligation or Payment Without Executed Change In Work Form
64

 
17.7
Owner Directives
64

 
17.8
Disputed Changes In Work
65

 
17.9
Change for Contractor's Convenience
65

 
 
 
 
18.
WARRANTIES CONCERNING THE WORK
65

 
18.1
Defect *** Warranties
65

 
18.2
Warranty Periods
66

 
18.3
Exclusions
66

 
18.4
Enforcement by Owner; Subcontractor Warranties
67

 
18.5
Correction of Defects
68

 
18.6
Limitations On Warranties
69

 
 
 
 
19.
TITLE
69

 
19.1
Title; No Encumbrances
69

 
19.2
Transfer
70

 
19.3
Custody During Performance
70

 
 
 
 
20.
DEFAULTS AND REMEDIES
70

 
20.1
Contractor Events of Default
70

 
20.2
Owner's Rights and Remedies
71

 
20.3
Owner Event of Default
72

 
20.4
Contractor's Rights and Remedies
73


*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-iv-





TABLE OF CONTENTS
(continued)

Page

 
20.5
Termination Payment
74

 
 
 
 
21.
TERMINATION OR SUSPENSION
74

 
21.1
Termination and Damages for Contractor Event of Default
75

 
21.2
Owner's Right to Elect to Assume Obligations with Subcontractors
75

 
21.3
Contractor Conduct
75

 
21.4
Suspension for Cause
75

 
21.5
Claims for Payment
77

 
21.6
Release of Punch List Holdback upon Termination
77

 
 
 
 
22.
INSURANCE
77

 
22.1
General
77

 
22.2
Contractor's Insurance (General Coverages)
78

 
22.3
Owner's Insurance (General Coverages)
79

 
22.4
Builder's All-Risk Insurance
80

 
22.5
Endorsements Applicable to Contractor Insurance
81

 
22.6
Subcontractor Insurance
82

 
22.7
Contractor's Certificates
82

 
22.8
Owner's Certificates
82

 
22.9
Descriptions Not Limitations
83

 
22.10
Cost of Premiums.
83

 
22.11
Other Deductibles
83

 
22.12
Both Party's Rights to Provide Insurance
83

 
22.13
No Limitation of Liability
84

 
22.14
Other Terms and Provisions
84

 
 
 
 
23.
RISK OF LOSS OR DAMAGE
84

 
23.1
Care, Custody and Control
84

 
23.2
Risk of Loss
84

 
 
 
 
24.
INDEMNIFICATION
84

 
24.1
Comparative Fault
84

 
24.2
By Contractor
84

 
24.3
By Owner
86

 
24.4
Patent Infringement and Other Indemnification Rights
87

 
24.5
Claim Notice
88

 
24.6
Survival of Indemnity Obligations
89

 
24.7
Treatment of Indemnification Payments
89

 
24.8
Contractor Lien Indemnity
90

 
 
 
 
25.
CONFIDENTIAL INFORMATION
90

 
25.1
Confidential Information
90

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TABLE OF CONTENTS
(continued)

Page

 
25.2
Use of Confidential Information
91

 
25.3
Remedies for Breach of Confidentiality Obligations
92

 
 
 
 
26.
ASSIGNMENT
93

 
26.1
Assignment to Other Persons
93

 
26.2
Indemnitees; Successors and Assigns
93

 
 
 
 
27.
HAZARDOUS MATERIALS
94

 
27.1
Use by Contractor
94

 
27.2
Remediation by Contractor
94

 
27.3
Notice of Hazardous Materials
94

 
27.4
Pre-Existing Contamination
95

 
 
 
 
28.
NON-PAYMENT CLAIMS
95

 
 
 
 
29.
NOTICES AND COMMUNICATIONS
96

 
29.1
Requirements
96

 
29.2
Representatives
97

 
29.3
Effective Time
97

 
 
 
 
30.
LIMITATIONS OF LIABILITY AND REMEDIES
97

 
30.1
Consequential Damages
97

 
30.2
Limitations on Contractor's Liability
98

 
30.3
Limitation on Owner's Liability
99

 
 
 
 
31.
DISPUTES
99

 
31.1
Dispute Resolution
99

 
31.2
Referral to Contractor's Project Manager and Owner Representative
99

 
31.3
Referral to Authorized Officers
99

 
31.4
Independent Expert Resolution
100

 
31.5
Arbitration Resolution
101

 
31.6
Continuation of Work During Dispute
101

 
 
 
 
32.
INTELLECTUAL PROPERTY
101

 
32.1
Ownership
101

 
32.2
Irrevocable License
101

 
32.3
Transfer and Assignment
102

 
32.4
Subcontractor Licenses
102

 
32.5
Non-Exclusive License
102

 
 
 
 
33.
MISCELLANEOUS
102


-vi-





TABLE OF CONTENTS
(continued)

Page

 
33.1
Severability
102

 
33.2
Governing Law; Venue; Stipulations
102

 
33.3
Survival of Termination
103

 
33.4
No Oral Modification
103

 
33.5
No Waiver
103

 
33.6
Review and Approval
103

 
33.7
Third Party Beneficiaries
103

 
33.8
Further Assurances
103

 
33.9
Financing Cooperation
104

 
33.10
Record Retention
104

 
33.11
Binding on Successors
104

 
33.12
Merger of Prior Contracts
104

 
33.13
Counterparts
105

 
33.14
Attorneys' Fees
105

 
33.15
Announcements; Publications
105

 
33.16
Independent Contractor
105

 
33.17
Audit
105

 
33.18
Independent Engineer
106


-vii-





EXHIBITS
Exhibit A
Statement of Work
A-1    Contractor's Statement of Work
A-2    Owner-Provided Facilities, Services and Information
A-3    Division of Responsibilities Table
Exhibit B
Contractor Deliverables
Exhibit C
Permits
C-1    Owner-Acquired Permits
C-2    Contractor-Acquired Permits
C-3    Division of CUP Responsibilities Table

Exhibit D
Site Safety Plan
D-1    Contractor Safety Program
Exhibit E
Operating Personnel Training Program
Exhibit F
Lien Waiver and Releases
F-1    Conditional Waiver and Release Upon Progress Payment
F-2    Unconditional Waiver and Release Upon Progress Payment
F-3    Conditional Waiver and Release Upon Final Payment
F-4    Unconditional Waiver and Release Upon Final Payment    

Exhibit G
Schedule Milestones

Exhibit H
Testing Process
H-1     Block Capacity Test
H-2    Phase and PV Power Plant Capacity Test
H-3    PPA Phase Capacity Certification Procedure
H-4    PV Power Plant Functional Test
 
Exhibit I
Progress Payment Schedule
I-1    Progress Payment Schedule
I-2    Cumulative Maximum Payment Amounts

Exhibit J
Legal Description of Site
Exhibit K
Site Plan
Exhibit L
Specified Suppliers and Specified Subcontractors
Exhibit M
Commissioning Procedures
Exhibit N
Example Calculation of Holdback Release
Exhibit O
Example Calculations of Liquidated Damages
Exhibit P
***
Exhibit Q
List of Environmental Reports

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.








Exhibit R
Module Warranty Terms and Conditions
Exhibit S
Change In Work Form
Exhibit T
Block Descriptions
Exhibit U
Form of Contractor's Invoice
Exhibit V
Single Line Electrical Drawing
Exhibit W
Quality Assurance Program
Exhibit X
X-1 Block Substantial Completion Certificate
X-2 Phase Substantial Completion Certificate
X-3 PV Power Plant Substantial Completion Certificate
X-4 Final Completion Certificate

Exhibit Y
***
Exhibit Z
Project Labor Agreement
Z-1 Assignment of PLA
Exhibit AA
Davis Bacon Act Requirements
Exhibit BB
Form of Escrow Agreement
Exhibit CC
County Fiscal Agreement
Exhibit DD
Form of Subordination Agreement
Exhibit EE
Form of Material and Equipment Supply Agreement
Exhibit FF
Contractor Letter of Credit

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.






ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT is made and entered into as of this 30th day of September, 2011 (the “Effective Date”), between High Plains Ranch II, LLC, a Delaware limited liability company (“HPR II” or “Owner”) and SunPower Corporation, Systems, a Delaware corporation (“Contractor”). Each entity is sometimes individually referred to herein as a “Party” and the entities are sometimes collectively referred to herein as the “Parties.”

RECITALS
WHEREAS, HPR II is developing a 250 MW AC design capacity photovoltaic power plant at the Site (as hereinafter defined) (the “PV Power Plant”);
WHEREAS, Owner has negotiated and agreed upon terms and conditions for the sale of the electrical energy generated by its photovoltaic power project, together with related attributes of the electrical energy and environmental attributes, to Pacific Gas and Electric Company (“PG&E”) pursuant to the Power Purchase Agreements (as hereinafter defined); and
WHEREAS, Owner and Contractor entered into that certain Preliminary Construction Agreement dated August 4, 2011 (the “PCA”), for the purposes of performing certain preliminary work necessary to the construction of the PV Power Plant;
WHEREAS, the Parties intend this Agreement to supersede the PCA, and all of the rights and liabilities of the Parties thereunder;
WHEREAS, Owner desires to engage Contractor to design, engineer, procure certain equipment and materials for, install, construct, test, commission the PV Power Plant, and to perform certain related work, and Contractor desires to provide such materials and services, all in accordance with the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.
DEFINITIONS AND RULES OF INTERPRETATION
1.1    Definitions. For the purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the following meanings.

AC” or “ac” means alternating current.
-1-




Affiliate” means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is under common Control with, or is Controlled by such specified Person.
After-Tax Basis” shall mean, with respect to any indemnified amount to or for the benefit of a person (the “recipient”) that is required to be paid on such basis, the indemnified amount increased so that, after deduction of the amount of all Taxes (assuming for this purpose that the recipient of such payment is a U.S. corporation whose only taxable income arises in connection with the Project and this Agreement and is subject to taxation at the highest federal rate generally applicable to persons of the same type as the recipient for the year in which such income is taxable and at a marginal rate of state and local tax rate of (***%) required to be paid by the recipient (less any tax savings realized and the present value (determined using a discount rate equal to *** percent (***%)) of any tax savings projected to be realized as a result of the payment of the indemnified amount, in each case using the same tax rate assumptions as set forth in the immediately preceding parenthetical phrase) with respect to the receipt by the recipient of such amounts (as reasonably estimated by the recipient), such increased payment (as so reduced) is equal to the indemnified amount otherwise required to be paid.
Agreement” means this Engineering, Procurement and Construction Agreement, including all Exhibits hereto, as the same may be modified, amended or supplemented from time to time in accordance with the terms hereof.
Applicable Law” means and includes any statute, license, law, rule, regulation, code, ordinance, judgment, Permit Requirement, decree, writ, legal requirement or order, of any national, federal, state or local court or other Governmental Authority, and the official, written judicial interpretations thereof, applicable to the Work, the Site, the PV Power Plant or the Parties.
Applicable Permit” means each national, state, local or other license, consent, appraisal, authorization, ruling, exemption, variance, order, judgment, decree, declaration, regulation, certification, filing, recording, permit (including, where applicable, conditional permits) or other approval with, from or of any Governmental Authority, including each and every environmental, construction, operating or occupancy permit, that is required by Applicable Law for the performance of the Work and the ownership or operation of the PV Power Plant, including those set forth on Exhibits C-1 and C-2.
Approved Bank” means a bank (i) that has net assets of not less than $100,000,000,000 and the long term senior debt obligations of which are rated of at least “AA” or better by Standard and Poor's Rating Services, Inc. or “Aa2” or better by Moody's Investor Services, Inc. and (ii) that has an office or branch in United States.
As-Built Drawings” means a complete set of as-built drawings prepared in accordance with Applicable Laws and which in all material respects accurately depicts and represents the completed PV Power Plant as constructed and installed.
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-2-




Assignment and Assumption Agreement” means that Assignment and Assumption Agreement dated August 17, 2011, by and between Fluor Constructors International, Inc. and the Contractor attached hereto as Exhibit Z-1.
Authorized Officer” has the meaning set forth in Section 31.3.
Block” means a grouping of Systems and the portion of the Work required to complete a Block, as specified in Exhibit T, that is treated as a separate portion of the Work under this Agreement for purposes of schedule, sequencing, commissioning, testing and completion. The Parties understand and agree that the Blocks may proceed in overlapping schedules, so that during some periods, various Blocks may be under construction simultaneously.
Block Substantial Completion” means, with respect to the initial Block, the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.1.1, and with respect to each additional Block thereafter, the satisfaction (or waiver in writing by Owner) of the requirements set forth in Section 15.1.2.
Block Substantial Completion Certificate” means, for any Block, a certificate signifying that Block Substantial Completion for such Block has occurred, in the form of the attached Exhibit X-1.
Block Substantial Completion Date” means, for each Block, the date on which the Block Substantial Completion with respect to such Block occurred, determined in accordance with Section 15.5.
“Block Substantial Completion Test” means the Performance Acceptance Tests to be performed for each Block in compliance with the criteria and guidelines set forth in Exhibit H-1.
Bonus Payment” shall have the meaning set forth in Section 16.2.
Business Day” means a day, other than a Saturday or Sunday or a public holiday, on which banks are generally open for business in the State of California.
Cash Grant” shall mean the cash grant in lieu of energy credits under Section 48 of the Internal Revenue Code, from the U.S. Department of the Treasury under Section 1603 of the American Recovery and Reinvestment Act of 2009 in respect of the Project or a Phase.
Cash Grant Guidance” shall mean the guidance issued on July 9, 2009 (as revised in March 2010 and April 2011), by the U.S. Department of the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009, the “Frequently Asked Questions” and “Frequently Asked Questions Regarding Commencement of Construction” published by the U.S. Department of Treasury, and any clarification, amendment, addition or supplement thereto, or any other guidance or similar materials, issued by the U.S. Department of Treasury or any other Governmental Authority.
Change In Law” means the enactment, adoption, promulgation, modification (including a written change in interpretation by a Governmental Authority) or repeal of any Applicable Law after the Effective Date, provided, however, that the final enactment, modification, amendment
-3-




or repeal of an Applicable Law prior to the Effective Date but which takes effect after the Effective Date shall not be a Change In Law pursuant to this Agreement.
Change In Work” means a change in the Work as defined in Section 17.1.
Change In Work Form” means the form in respect of a Change In Work attached as Exhibit S hereto.
Claim Notice” has the meaning set forth in Section 24.5.
“Code means the Internal Revenue Code of 1986, as amended.
“Commencement of Construction” means that (x) Contractor has (1) completed all pre-construction engineering and design services, (2) received all Contractor-Acquired Permits that, in each case, are reasonably necessary to begin (or, if previously interrupted or suspended, resume) physical work of a significant nature on the Project and to proceed to completion without foreseeable interruption of a material duration, (3) engaged all subcontractors and ordered all essential equipment and supplies that, in each case, are reasonably necessary to begin (or, if previously interrupted or suspended, resume) physical work of a significant nature on the Project and to proceed to completion of the PV Power Plant without foreseeable interruption of a material duration; and (y) Contractor has begun (or resumed) such physical work.
“Commissioning” is energization and functional testing of a Block or portions thereof, including verifying System completeness as received from Contractor's construction team and readiness for operations and testing.
Commissioning Hold Items” has the meaning set forth in Section 14.1.4.
Commissioning Plan” means the commissioning plan for the PV Power Plant to be developed and finalized in compliance with the criteria and guidelines set forth in Exhibit M.
Commissioning Procedures” means the actions to be followed by Owner or Contractor related to the commissioning of the PV Power Plant as specified with respect to such party in the Commissioning Plan.
Competitor of NRG” means any Person (or any such Person's Affiliates) engaged as a substantial portion of their business, in the development, construction, and/or operation of utility scale power plants. For purposes of confirming whether a third party constitutes a Competitor of NRG under this Agreement, Contractor shall notify Owner of the identity of such third party and Owner shall respond to Contractor in writing within ten (10) Business Days whether such third party constitutes a Competitor of NRG hereunder, provided that if Owner does not respond within such ten (10) Business Days period, then such third party shall be deemed not to be an Competitor of NRG.
Competitor of SunPower” means ***, ***, their Affiliates, and any Person (or any such Person's Affiliates) engaged primarily in the business of manufacturing photovoltaic modules, except *** and ***.
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

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Completion Certificate” means a Block Substantial Completion Certificate, a Phase Substantial Completion Certificate, the PV Power Plant Substantial Completion Certificate, and the Final Completion Certificate, as applicable.
Confidential Information” has the meaning set forth in Section 25.1.
Contract Intellectual Property” has the meaning assigned thereto in Section 32.1.
Contract Interest Rate” has the meaning set forth in Section 6.5.4.
Contract Price” has the meaning set forth in Section 5.1, as the same may be adjusted pursuant to the terms hereof.
Contractor” has the meaning set forth in the preamble and shall include any of its successors and permitted assigns.
Contractor-Acquired Permits” means the Applicable Permits required by Contractor for the performance of the Work as set forth in Exhibit C-2.
Contractor Deliverable(s)” means the documentation described in the Contractor Deliverables Table.
Contractor Deliverables Table” means the table of Contractor Deliverables attached hereto as Exhibit B.
Contractor Event of Default” has the meaning set forth in Section 20.1.
Contractor Financing Parties” means any and all lenders providing financing or refinancing to Contractor Parent, Contractor or their Affiliates with an interest in the Contractor's rights and interests under this Agreement and any trustee or agent acting on their behalf.
Contractor Indemnitee” has the meaning set forth in Section 24.3.
Contractor Lien” has the meaning set forth in Article 28.
***
***
Contractor Taxes” means ***
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

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Contractor's Invoice” means an invoice from Contractor to Owner prepared by Contractor and in a form attached as Exhibit U.
Contractor's Project Manager” means the project manager appointed by Contractor and reasonably approved by Owner pursuant to Section 3.4.
Contractor's Safety Program” has the meaning set forth in Section 3.12.2.
Control” means (including with correlative meaning the terms “Controlled”, “Controls” and “Controlled by”), as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Cost Segregation Firm” shall mean any regionally or nationally recognized certified appraisal, valuation, or accounting firm that has expertise in providing reports that determine the cost basis of property in accordance with the general rules for determining the basis of property for federal income tax purposes.
Cost Segregation Report” means the report prepared by the Cost Segregation Firm that sets forth an allocation of the cost basis of property relating to the applicable Phase of the PV Power Plant in accordance with the general rules for determining the basis of property for federal income tax purposes.  The Cost Segregation Report shall include, without limitation, an allocation of the cost basis of property relating to the Phase without regard to any amounts paid or incurred by Owner other than the Contract Price.
County Fiscal Agreement” means that agreement attached hereto as Exhibit CC.
CPM Schedule” has the meaning set forth in Section 7.2.
Critical Path” means the set of dependent tasks and related periods set forth in the CPM Schedule which are required for Contractor to achieve Substantial Completion by the applicable Substantial Completion Guaranteed Date.
Cure Period” means, with respect to each Phase or the PV Power Plant, the period beginning on the applicable Phase Substantial Completion Guaranteed Date or the PV Power Plant Substantial Completion Guaranteed Date and ending *** days later, as adjusted pursuant to Section 16.6.
Davis Bacon Act” means the federal law codified at 42 U.S.C 1341 et seq., as amended, and commonly referred to as the Davis Bacon Act.
DC” or “dc” means direct current.
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Defect” means any failure of the PV Power Plant (or applicable portions thereof) to conform to the Plant Specifications.
Defect Warranty” has the meaning set forth in Section 18.1.1.
Defect Warranty Period” has the meaning set forth in Section 18.2.1.
Delay Liquidated Damages” has the meaning set forth in Section 16.1.
Delay Notice” has the meaning set forth in Section 8.2.1.
Delay Response Plan” has the meaning set forth in Section 7.7.
Design Review Conference” has the meaning set forth in Section 7.2.
***
***
Disclosing Party” has the meaning set forth in Section 25.1.
Discussion Period” has the meaning set forth in Section 31.3.
Dispute” has the meaning set forth in Section 31.1.
Dollars,” “dollars” or “$” means United States Dollars.
Effective Date” has the meaning set forth in the preamble.
Environmental Law” means any Applicable Law or Applicable Permit relating to the environment, or to handling, storage, transportation, emissions, discharges, releases or threatened emissions, discharges or releases of Hazardous Materials into the environment, including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment or disposal of any Hazardous Materials, including, but not limited to, the Clean Air Act, the Federal Water Pollution Control Act (including, but not limited to the Clean Water Act and the Oil Pollution Act), the Safe Drinking Water Act, the Federal Solid Waste Disposal Act (including, but not limited to, the Resource Conservation and Recovery Act of 1976), the Comprehensive Environmental Response, Compensation, and Liability Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Emergency Planning and Community Right-to-Know Act, and the Occupational Safety and Health Act (to the extent relating to human exposure to Hazardous Materials) and any other federal, state or local laws, ordinances, rules or regulations now or hereafter existing relating to any of the foregoing.
Environmental Reports” means the reports listed in Exhibit Q, hereto.
Event of Default” means either a Contractor Event of Default or an Owner Event of Default, as the context may require
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Excusable Event” means an event that wholly or partially prevents or otherwise adversely affects Contractor's performance of the Work, to the extent such event is attributable to (i) an Unknown Pre-Existing Site Condition or (ii) an Owner-Caused Delay.
Final Completion” means satisfaction by Contractor or waiver by Owner of all of the conditions for Final Completion set forth in Section 15.5.
Final Completion Certificate” means a certificate with respect to the entire PV Power Plant signifying that Final Completion of the PV Power Plant has been achieved in the form of the attached Exhibit X-4.
Final Completion Date” has the meaning set forth in Section 15.6.
Final Completion Guaranteed Date” means the date that is *** days after the PV Power Plant Substantial Completion Date.
Final Contractor's Invoice” has the meaning set forth in Section 6.7.
Final EIR” is the Final Environmental Impact Report prepared and certified by the County of San Luis Obispo in connection with the issuance of the Conditional Use Permit for the Project.
Final Payment” has the meaning set forth in Section 6.7.
Final Performance Acceptance Test” has the meaning set forth in Section 16.10.
Force Majeure Event” means any act, event, condition, or occurrence that (i) wholly or partially prevents the affected Party from performing its obligations under this Agreement, (ii) is beyond the reasonable control of and not the result of negligence of, the affected Party and (iii) such affected Party has been unable to overcome by the exercise of due diligence, and to the extent that the foregoing requirements are met, “Force Majeure Event” may include ***. Notwithstanding the foregoing, the following events, conditions or occurrences shall not constitute a Force Majeure Event:
(a)    the absence of sufficient financial means to perform obligations or the failure to make payments in accordance with this Agreement;
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(b)    any Labor Dispute of Contractor's workers or personnel (including workers or personnel of Contractor's Affiliates) or any Subcontractor or such Subcontractor's workers or personnel or any independent contractor, vendor, fabricator, or manufacturer engaged by Contractor to the extent occurring at the Site or, in the case of the Contractor, Contractor's Affiliates, or Subcontractors, at the Contractor's, Contractor's Affiliates', or Subcontractor's facilities (except for Labor Disputes that are national or regional in scope);
(c)    mechanical failures unless caused by a Force Majeure Event;
(d)    storms and other climatic or weather conditions (except unusually severe weather conditions and insufficient irradiation for performance testing as described above); and
(e)    the unavailability or shortages of equipment and materials unless itself caused solely by an event of Force Majeure.
Full Notice to Proceed” means a Notice signed by a representative of Owner to Contractor authorizing Contractor to commence and complete all Work under this Agreement, delivered concurrently with the Effective Date.
Geotechnical Reports” are the reports entitled Geotechnical Exploration, PG&E California Valley Solar Ranch, dated October 3, 2008, PG&E California Valley Solar Ranch Corrosivity Analysis, dated October 7, 2008, and Aggregate Resource Evaluation, May 31, 2009, listed in Exhibit Q.
Governmental Authority” means applicable national, federal, state, and local governments and all agencies, authorities, departments, instrumentalities, courts, corporations, other authorities lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or other subdivisions of any of the foregoing having a regulatory interest in or jurisdiction over the Site, the PV Power Plant, the Work or the Parties.
Gross Invoiced Amount” means the cumulative invoiced portion of the Contract Price by the Contractor.
Guaranteed Capacity” has the meaning set forth in Exhibit T.
Guaranteed Reference Conditions” or “GRC” has the meaning set forth in Exhibit H‑1.
Hazardous Materials” means any chemical, substance or material regulated or governed by any Applicable Permit, or any substance, emission or material now or hereafter deemed by any Governmental Authority to be a “regulated substance,” “hazardous material,” “hazardous waste,” “hazardous constituent,” “hazardous substance,” “toxic substance,” “radioactive substance” or “pesticide.”
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HPR II” has the meaning set forth in the preamble and shall include any successors and permitted assigns.
HPR II PPA” means that certain Power Purchase and Sale Agreement between PG&E and HPR II dated July 23, 2008.
HPR III” means High Plains Ranch III, LLC, a Delaware limited liability company, that was merged into HPR II with HPR II as the surviving entity pursuant to that Merger Agreement by and between HPR II and HPRIII dated as of September 29, 2011.
HPR III PPA” means that certain Amended and Restated Power Purchase and Sale Agreement between PG&E and HPR III dated March 5, 2010, as amended by that certain Amendment of the Amended and Restated Power Purchase Agreement, effective as of April 26, 2010, and as [assigned/amended] by that certain Merger Agreement between HPRII and HPRIII dated as of September 29, 2011.
Hydrology Reports” are the reports entitled Preliminary Hydrologic Investigation for the California Valley Solar Ranch, dated Nov. 1, 2008, Preliminary Hydrologic Investigation for the California Valley Solar Ranch (Addendum), dated Dec. 1, 2009, Hydrogeology in the Vicinity of the Proposed California Valley Solar Ranch, dated Dec. 18, 2009, and Preliminary Hydrology for APN 084-401-002 (Martin Property) California Valley Solar Ranch, Alternative Layout “T0-Alt #3” dated June 21, 2010, listed in Exhibit Q.
Indemnitee” means an Owner Indemnitee or a Contractor Indemnitee, as the context may require.
Independent Accountant” shall mean such “Big 4” accounting firm chosen by Owner to provide the certifications attesting to the accuracy of all costs claimed as part of the basis of the Phases for purposes of the Section 1603 Applications or Section 1603 Commencement of Construction Applications.
Independent Engineer” means an independent engineer of recognized expertise, selected by the Owner Financing Parties and reasonably acceptable to Owner and Contractor, and such independent engineer's successors and permitted assigns.
Independent Expert” means any Person agreed to by the Parties for expedited resolution of Minor Change Disputes pursuant to Section 31.4.
Industry Standards” means those standards of design, construction and workmanship relating to the PV Power Plant Hardware, components, operation, and construction, specified in Part Two, Section 3 of Exhibit A-1.
Intellectual Property” means all, patents, copyrights, trademarks, service marks, trade secrets, licenses, and proprietary information, whether registered or not, including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.
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Intellectual Property Claim” means a claim or legal action for unauthorized disclosure or use of any trade secret, patent, copyright, trademark or service mark arising from Contractor's performance (or that of its Affiliates or Subcontractors) under this Agreement that: (a) concerns any PV Power Plant Hardware or other services provided by Contractor, any of its Affiliates, or any Subcontractor under this Agreement; (b) is based upon or arises out of the performance of the Work by Contractor, any of its Affiliates, or any Subcontractor, including the use of any tools or other implements of construction by Contractor, any of its Affiliates, or any Subcontractor; or (c) is based upon or arises out of the design or construction of any item by Contractor or any of its Affiliates or Subcontractors under this Agreement or the operation of any item according to directions embodied in Contractor's final PV Power Plant design, or any revision thereof, prepared or approved by Contractor.
Interconnection Facilities” means Transmission Provider's facilities necessary to permit Owner to interconnect and deliver energy at the Interconnection Point in accordance with the LGIA and shall include, but not be limited to, connection, switching, metering, communications, control, safety equipment as well as Network Upgrades.
Interconnection Point” shall be the 230 kV bus in the Caliente Switching Station, where the gen-tie terminates.
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
Invoice Payment” has the meaning set forth in Section 6.5.3.
Key Personnel” means the following Contractor personnel performing Work under this Agreement: Contractor's Project Manager, construction site manager and startup and commissioning manager.
kV” means kilovolts.
kW” means a measure of instantaneous power as measured in kilowatts AC.
kWh” means kilowatt-hours AC.
Large Generator Interconnection Agreement” or “LGIA” shall have the meaning set forth in the PPAs
Labor Dispute” means work stoppages, slowdowns, strikes, disputes, disruptions, boycotts, and walkouts.
Letter of Credit” means an irrevocable standby letter of credit issued by a bank or trust company (i) with a combined capital surplus of at least one billion dollars ($1,000,000,000) and (ii) whose senior unsecured obligations have a credit rating of at least A- from Standard and Poor's or A3 from Moody's Investor Services Inc.
License” has the meaning set forth in Section 32.2.
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Losses” means, subject to Article 30, any and all actions, suits, claims, demands, costs, charges, expenses, liabilities, Taxes, losses or damages.
Major Subcontractor” means a Person that is selected and enters into a subcontract with Contractor or any Subcontractor for the performance of any part of the Work, and whose subcontract or subcontracts (in the aggregate) with Contractor require payments by Contractor of *** or more.
Mechanical Completion” means, for each Block, that the Block is mechanically, electrically and structurally constructed in accordance with the Statement of Work, and ready for initial operations, adjustment and testing in accordance with the requirements for Mechanical Completion as set forth in Exhibit M, except for Non-Critical Deficiencies.
Meteorological Station” or “Met Station” means the meteorological station described in Exhibit A-1.
Milestone Item” means a discrete portion of the Work as set forth in Exhibit G.
Minimum Performance Guarantee” for (a) each Phase shall be equal to ***% of the Guaranteed Capacity of such Phase, and (b) the PV Power Plant, shall be equal to ***% of the Guaranteed Capacity of the PV Power Plant, in each case of (a) and (b), during a Successful Run of the applicable Performance Acceptance Test with all applicable PV modules connected and operational.
Minor Change Disputes” has the meaning set forth in Section 31.4.
Module Warranty Terms and Conditions” means the terms and conditions set forth in Exhibit R.
Monthly Progress Report” means a written monthly progress report prepared by Contractor, in a form to be agreed by the Parties, and including information, set forth in Exhibit A-1.
Monthly Updated CPM Schedule has the meaning set forth in Section 7.4.
MW AC” means megawatts of alternating current.
MW DC” means megawatts of direct current
Network Upgrade” shall mean all transmission and network upgrades required by CAISO and/or the Transmission Provider to interconnect the Project with the Transmission Provider's transmission system.
Non-Critical Deficiencies” means each item of Work that Owner or Contractor identifies as requiring completion or containing defects or deficiencies that do not (a) impede the safe operation of the PV Power Plant or any portion thereof, in accordance with Industry Standards; and (b) adversely affect the reliability, operability, or mechanical or electrical integrity of the PV Power Plant or any portion thereof.
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Notice” or “Notification” means a written communication between authorized representatives of the Parties required or permitted by this Agreement and conforming to the requirements of Article 29.
Notice of Final Completion” means a Notice from Contractor to Owner provided under Section 15.6.
Notice of Substantial Completion” means, for each Block, Phase or the PV Power Plant, as applicable, a Notice from Contractor to Owner provided under Section 15.4.
Notify” means to provide a Notice or Notification.
Operating Personnel” means the personnel hired by Owner, or by an entity providing operating services for Owner, to operate the PV Power Plant or any applicable portion thereof (including all operators, instrument technicians and supervisors and Owner's contractors (other than Contractor )).
OSHA” means the United States Department of Labor Occupational Safety and Health Administration.
Owner” has the meaning set forth in the preamble and shall include any successors and permitted assigns.
Owner-Caused Delay” means ***.
Owner Critical Path Dates” means the respective dates identified in Exhibit G for the performance of the Owner Critical Path Items.
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Owner Critical Path Items” means the items identified in Exhibit G as “Owner Critical Path Items.”
Owner Directive” has the meaning set forth in Section 17.7.
Owner Event of Default” has the meaning set forth in Section 20.3.
Owner Financing Parties” means (a) any and all third party lenders (that is, unaffiliated with Owner or Owner Parent) providing senior or subordinated construction, interim or long-term debt financing or refinancing to Owner; (b) any and all third party equity investors (that is, unaffiliated with Owner or Owner Parent) in Owner providing tax equity investment or leveraged lease-financing or refinancing; or (c) any Person providing credit support to Owner, in each case of (a), (b) and (c) above, in connection with the PV Power Plant, and, in each case, any trustee or agent acting on behalf of such lenders or investors.
Owner Indemnitee” has the meaning set forth in Section 24.2.
***
***
Owner-Provided Facilities and Services” has the meaning set forth in Exhibits A-2 and A-3.
Owner-Provided Information” means the information provided by or on behalf of Owner as set forth in Exhibit A-2.
Owner Representative” means the representative designated by Owner pursuant to Section 2.1.
Owner's Engineer” means any engineering firm or firms or other engineer or engineers selected and designated by Owner, provided that it is not a Competitor of SunPower.
Owner's Separate Contractors” means each contractor or other Person that is in direct or indirect contractual privity with Owner and that performs any work in respect of the Project, but excluding Contractor and each Person engaged by Contractor or any of its Subcontractors in connection with the performance of the Work; provided, however, that where a Person so engaged by Contractor or any of its Subcontractors is also performing work in connection with the Owner-Provided Facilities and Services, as a contractor or a subcontractor of a contractor of Owner, such Person shall be considered one of “Owner's Separate Contractors” with respect to its performance of such work.
Owner Taxes” means (i) any and all Taxes imposed under Applicable Law in respect of the income or gross income of the Owner, the direct or indirect owners of beneficial interests in the Owner and the Affiliates of the foregoing, (ii) Property Taxes imposed under Applicable Law in respect of the Site or the PV Power Plant Interconnection Facilities, and (iii) any and all other Taxes, not described in clauses (i) or (ii), including Property Taxes, imposed under Applicable Law on Owner, the PV Power Plant (or the operation thereof), or any property incorporated
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therein pursuant to Section 5.2), in each case, for any period beginning on or after the Substantial Completion of the relevant Block.
PCA” has the meaning set forth in the recitals.
Performance Acceptance Tests” means, as the context may require, the Block Substantial Completion Tests, the Phase Substantial Completion Tests, and the PV Power Plant Substantial Completion Tests.
Performance Acceptance Test Procedures” means the written test procedures, standards, protective settings, and testing programs for the Performance Acceptance Tests established by Contractor and approved by Owner in compliance with the criteria and guidelines set forth in Exhibits H-1, H-2, and H-3, as applicable.
Performance Guarantee” means that the Tested Capacity of a Phase or the PV Power Plant, as applicable, is at least equal to the Guaranteed Capacity during a Successful Run of the applicable Performance Acceptance Test, as set forth in Exhibit H-2.
Performance Liquidated Damages” means, for each Phase and the PV Power Plant, the amounts (if any) paid or to be paid by Contractor pursuant to Section 16.3 if Contractor fails to satisfy the applicable Performance Guarantee.
Permit Expenses” means the actual costs payable to a Governmental Authority and all other reasonable third party costs and expenses incurred in connection with the application for and issuance of an Applicable Permit.
Permit Requirement” means any requirement or condition on or with respect to the issuance, maintenance, renewal, transfer of, or otherwise relating to, any Applicable Permit or any application therefor.
Person” means any individual, corporation, company, voluntary association, partnership, incorporated organization, trust, limited liability company, or any other entity or organization, including any Governmental Authority.
PG&E” has the meaning assigned to such term in the recitals.
Phase” means each of Phase 1, Phase 2, Phase 3 and Phase 4.
Phase 1” means the first stage of the PV Power Plant, corresponding to “Phase 1” referred to in the HPR II PPA, which stage includes the Work required to complete the initial Block specified for such Phase in Exhibit T.
Phase 1 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 1 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.
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Phase 2” means the second stage of the PV Power Plant corresponding to “Phase 2” referred to in the HPR II PPA, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.
Phase 2 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 2 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.
Phase 3” means the third stage of the PV Power Plant, corresponding to “Phase III” referred to in the HPR II PPA, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.
Phase 3 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 3 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.
Phase 4” means the stage of the PV Power Plant corresponding to the “Project” referred to in the HPR III PPA,, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.
Phase 4 Substantial Completion Guaranteed Date” means the Guaranteed Phase/Commercial Operation Date for Phase 4 stated in Exhibit G, and as such date may be adjusted or extended pursuant to the terms of the HPR III PPA.
Phase Substantial Completion” means, with respect to each Phase, the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.2 with respect to such Phase.
Phase Substantial Completion Certificate” means a certificate with respect to a Phase signifying that Phase Substantial Completion for such Phase has occurred, in the form of the attached Exhibit X-2.
Phase Substantial Completion Date” means, for any Phase, the date on which the Phase Substantial Completion with respect to such Phase occurred, determined in accordance with Section 15.4.
Phase Substantial Completion Guaranteed Date” means, as applicable, the Phase 1 Substantial Completion Guaranteed Date, the Phase 2 Substantial Completion Guaranteed Date, the Phase 3 Substantial Completion Guaranteed Date, and the Phase 4 Substantial Completion Guaranteed Date.
Phase Substantial Completion Tests” means, the Performance Acceptance Tests to be performed for each Phase as described in Exhibits H-2 and H-3.
Plant Specifications” is the description of the PV Power Plant set forth in Exhibit A-1, Part Two.
Power Purchase Agreements” or “PPAs” means the HPR II PPA and the HPR III PPA.
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Pre-Commissioning” shall be the activities necessary to commence Commissioning as set forth in Exhibit M.
Pre-Existing Contamination” means any Hazardous Materials present at or under the Site, prior to the Effective Date as identified in the Environmental Reports and that was not brought to the Site by Contractor or its Subcontractors.
Priority A Item” has the meaning set forth in Section 14.1.6(a).
Priority B Item” has the meaning set forth in Section 14.1.6(b).
Progress Payment Schedule” means the schedule of monthly progress payments set forth in Exhibit I, as it may be adjusted in accordance with Article 17.
Project” means (a) the PV Power Plant that is designed, engineered, procured, and constructed in accordance with this Agreement and (b) the PV Power Plant Interconnection Facilities.
Project Labor Agreement” or “PLA” means that certain Project Labor Agreement for the California Valley Solar Ranch Project, dated October 27, 2010, by and between Fluor Constructors International, Inc. and International Brotherhood of Electrical Workers, Local 639, et al, a copy of which is attached hereto as Exhibit Z.
Property Tax” means any real or personal property, or any ad valorem Taxes related to the Site, the PV Power Plant, the PV Power Plant Hardware, or any other property that will be incorporated therein.
Punch List” has the meaning set forth in Section 14.1.6.
Punch List Amount” has the meaning set forth in Section 14.1.6.
Punch List Holdback” means an amount equal to *** of the Punch List Amount for each Priority B Item.
PV” means photovoltaic.
PV Power Plant” means the photovoltaic energy generating facility to be designed, engineered, procured, constructed, tested and commissioned under this Agreement in Phases as provided herein and as described in the Plant Specifications.
PV Power Plant Functional Tests” means the functional tests on the PV Power Plant set forth in Exhibit H-4.
PV Power Plant Functional Test Procedures” means the written test procedures, standards, protective settings, and testing programs for the PV Power Plant Functional Tests established by Contractor and approved by Owner in compliance with the criteria and guidelines set forth in Exhibit H-4.
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PV Power Plant Hardware” means all materials, supplies, apparatus, devices, equipment, machinery, tools, components, instruments and appliances that are to be incorporated into the PV Power Plant, whether provided by Contractor or any Subcontractor or Supplier.
PV Power Plant Interconnection Facilities” shall mean the PV Power Plant substation and 230 kV gen-tie structures extending from the substation to one span short of reaching Caliente switching station, as well as conductors and communication cables from the substation to Caliente switching station.
PV Power Plant Substantial Completion” means the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.3.
PV Power Plant Substantial Completion Certificate” means a certificate with respect to the entire PV Power Plant signifying that the PV Power Plant Substantial Completion has been achieved, in the form of the attached Exhibit X-3.
PV Power Plant Substantial Completion Date” means the date on which the PV Power Plant Substantial Completion occurred, determined in accordance with Section 15.5.
PV Power Plant Substantial Completion Guaranteed Date” means ***, as such date may be adjusted or extended pursuant to the terms hereof.
PV Power Plant Substantial Completion Tests” means the Performance Acceptance Tests to be performed for the PV Power Plant as described in Exhibits H-2.
Receiving Party” has the meaning set forth in Section 25.1.
Release” means the discharging, depositing, injecting, dumping, spilling, leaking, placing, pumping, pouring, emitting, emptying, escaping, leaching, disposing, or discarding of any Hazardous Materials into the environment so that such Hazardous Materials or any constituent thereof may enter the environment, or be emitted into the air or discharged into any waters, including ground waters.
Remedial Plan” means, for each Phase and the PV Power Plant, a plan prepared by Contractor regarding the actions to be taken and the schedule to remedy failures to meet the applicable Performance Guarantee, as submitted to and approved by Owner pursuant to Section 16.6.2.
Required Manuals” means the manuals, instructions and training aids, whether created by Contractor, Subcontractor or Supplier, which are set forth in the Contractor Deliverables Table.
Retention” has the meaning set forth in Section 6.6.1.
Retention L/C” means one or more irrevocable letters of credit to be provided by Contractor, issued by an Approved Bank on terms reasonably acceptable to Owner in lieu of all or a portion of the Retention.
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Schedule Milestones” means the Milestone Items associated with the Work, including the Owner Critical Path Items and the related Owner Critical Path Dates, as set forth in Exhibit G.
SCADA System” is the Supervision, Control, and Data Acquisition System for the PV Power Plant as described in Part One, Section 2.6, of Exhibit A-1.
Section 1603 Application” means an application submitted to the U.S. Department of the Treasury requesting a Cash Grant in respect of the Project or a Phase.
Section 1603 Commencement of Construction Application” means an application submitted to the U.S. Department of the Treasury evidencing that the commencement of construction (within the meaning of the requirements of Section 1603 of the American Recovery and Reinvestment Act of 2009 and in accordance with the Cash Grant Guidance) with respect to the Project (or a Phase) has begun.
Site” means the site for the location of the PV Power Plant, as more particularly described in Exhibit J.
Site Conditions” means the physical and other conditions at the Site and the surrounding area as a whole, including conditions relating to the environment, transportation, access, waste disposal, handling and storage of materials, the availability and quality of electric power, the availability and quality of water, the availability and quality of roads, climatic conditions and seasons, topography, air and water (including raw water) quality and access conditions, ground surface conditions, surface soil conditions, sound attenuation, subsurface geology, nature and quantity of surface and subsurface materials to be encountered (including Hazardous Materials).
Site Control Center” or “SCC” has the meaning set forth in Part One, Section 6.10 of Exhibit A-1.
Site Plan” means the plan set forth in Exhibit K.
Specified Subcontractor” means a Major Subcontractor set forth on Exhibit L (as amended from time to time in accordance with this Agreement).
Specified Supplier” means a Supplier of equipment as set forth on Exhibit L (as amended from time to time in accordance with this Agreement).
Standard Test Conditions” or “STC” means those standard test conditions described in Exhibits H-1, H-2 and H-3, as applicable.
Statement of Work” means the requirements regarding the Work set forth in Exhibit A‑1.
Subcontractor” means any Person, including any Supplier, other than Contractor or any of its Affiliates, that performs any portion of the Work for Contractor in furtherance of Contractor's obligations under this Agreement.
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Substantial Completion” means (a) with respect to a Block, the Block Substantial Completion with respect to such Block, (b) with respect to a Phase, the Phase Substantial Completion with respect to such Phase, and (c) with respect to the PV Power Plant, the PV Power Plant Substantial Completion.
Substantial Completion Date” has the meaning set forth in Section 15.5.
Substantial Completion Guaranteed Date” means the Phase 1 Substantial Completion Guaranteed Date, the Phase 2 Substantial Completion Guaranteed Date, the Phase 3 Substantial Completion Guaranteed Date, the Phase 4 Substantial Completion Guaranteed Date, or the PV Power Plant Substantial Completion Guaranteed Date, as applicable.
Substantial Completion Certificate” means a certificate from Owner certifying that Substantial Completion for a Block or Phase or the PV Power Plant, as applicable, has occurred in the form attached hereto as Exhibits X-1, X-2, & X-3.
Successfully Run” or “Successful Run” means, for each Phase and for the PV Power Plant (or, to the extent applicable, Block), (x) with respect to a Performance Acceptance Test, that (i) the applicable Performance Acceptance Test was completed in accordance with the applicable Performance Acceptance Test Procedures and (ii) the results from such Performance Acceptance Test demonstrate that such Phase, or the PV Power Plant, has successfully achieved at least the Minimum Performance Guarantee (or, with respect to a Block, the results from such Performance Acceptance Test demonstrate that the Block has successfully achieved at least ***% of its Guaranteed Capacity) and (y) with respect to a PV Power Plant Functional Test, that (i) the PV Power Plant Functional Test was completed in accordance with the applicable PV Power Plant Functional Test Procedure and (ii) the results from such PV Power Plant Functional Test demonstrate that the all major systems comprising the PV Power Plant are running in automatic and with a computed capacity weighted availability that is greater than or equal to ***%.
Supplier” means a Person that supplies PV Power Plant Hardware directly to Contractor in connection with the performance of the Work.
Suspension for Cause” has the meaning set forth in Section 21.4.2.
System Turnover Package” consists of the installation, assembly, and Pre-Commissioning checklists for each System in a Block.
Systems” has the meaning set forth in Section 14.1.
Taxes” means any and all taxes, charges, duties, imposts, levies and withholdings imposed by any Governmental Authority, including sales tax, use tax, income tax, withholding taxes, corporation tax, franchise taxes, margin tax, capital gains tax, capital transfer tax, inheritance tax, value added tax, customs duties, capital duty, excise duties, betterment levy, stamp duty, stamp duty reserve tax, national insurance, social security or other similar contributions, and any interest, penalty, fine or other amount due in connection therewith, but not including Permit Expenses.
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Tested Capacity” has the meaning set forth in Exhibit H-2.
Transmission Provider” means PG&E, by or through one or more of its Affiliates, or any other Person providing transmission services from time to time for energy generated by the PV Power Plant.
Third Party Intellectual Property” means Intellectual Property developed, conceived, reduced to practice or created by Subcontractors or other third parties in the performance of any portion of the Work or otherwise delivered to Contractor or Owner as part of the Work.
30 Day Look-ahead Schedule” has the meaning set forth in Section 7.5.
United States” means the United States of America.
Unknown Pre-Existing Site Conditions” means (i) any adverse environmental conditions affecting the Work which are not disclosed in the Environmental Reports (and that were not brought on to the Site by the Contractor or by any Subcontractor), except geological conditions and archaeological artifacts or features, and which were discovered after the Effective Date; and (ii) any adverse Site Conditions that existed or arose prior to the Effective Date of which NRG Solar LLC or its Affiliates had actual knowledge and did not disclose the same to Contractor.
Waiver and Release Form” shall mean the waivers and releases of liens described in Section 6.3(b) or Section 6.7, as applicable.
Warranty” means the Defect Warranty ***, as the context requires.
Warranty Period” means, for each Block, the applicable Defect Warranty Period or the applicable ***, as the context requires.
Work means all of Contractor's obligations set forth in Exhibits A-1 and A-3.
1.2    Exhibits. This Agreement includes the Exhibits annexed hereto and any reference in this Agreement to an “Exhibit” by letter designation or title shall mean one of the Exhibits identified in the table of contents and such reference shall indicate such Exhibit herein. Each Exhibit attached hereto is incorporated herein in its entirety by this reference.

1.3    Interpretation.

(a)    Terms defined in a given number, tense or form shall have the corresponding meaning when used in this Agreement with initial capitals in another number, tense or form. The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting either gender shall include both genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.
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(b)    The terms such as “hereof,” “herein,” “hereto,” “hereinafter” and other terms of like import are not limited in applicability to the specific provision within which such references are set forth but instead refer to this Agreement taken as a whole.
(c)    When a reference is made in this Agreement to an Article, Section, subsection or Exhibit, such reference is to an Article, Section, subsection or Exhibit of this Agreement unless otherwise specified.
(d)    The word “include,” “includes,” and “including” when used in this Agreement shall be deemed to be followed by the words “without limitation,” and, unless otherwise specified, shall not be deemed limited by the specific enumeration of items, but shall be deemed without limitation. The term “or” is not exclusive.
(e)    Except as otherwise provided herein, a reference to any Party to this Agreement or any other agreement or document shall include such Party's successors and permitted assigns.
(f)    Except as otherwise provided herein, reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, and all rules and regulations promulgated thereunder.
(g)    The Parties shall act reasonably and in accordance with the principles of good faith and fair dealing in the performance of this Agreement. Unless expressly provided otherwise in this Agreement, (i) where the Agreement requires the consent, approval, acceptance or similar action by a Party, such consent, approval or acceptance shall not be unreasonably withheld, conditioned or delayed and (ii) wherever the Agreement gives a Party a right to determine, require, specify or take similar action with respect to a matter, such determination, requirement, specification or similar action shall be reasonable.
(h)    Except as expressly provided herein or as the context may otherwise require, all references to “months” shall mean calendar months, and all references to “days” shall mean calendar days (i.e., including Business Days and non-Business Days).
(i)    Words “shall” and “will” are used interchangeably with the same meaning.
(j)    The Parties have participated jointly in the negotiation and drafting of this Agreement. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party by virtue of the authorship of this Agreement shall not apply to the construction and interpretation hereof.
1.4    Headings. All headings or captions contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

1.5    Conflicts in Documentation. This Agreement, including the Exhibits hereto shall be taken as mutually explanatory. If either Party becomes aware of an express conflict

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between the provisions of this Agreement or any Exhibit hereto, such Party shall immediately Notify the other Party of such conflict. In the event of a conflict between any provision within Articles 1 through 33 of this Agreement and an Exhibit, the provisions of Articles 1 through 33 of this Agreement shall take precedence.

2.    RESPONSIBILITIES OF OWNER
Owner shall carry out the responsibilities allocated to Owner under this Article 2 at Owner's cost and expense.
2.1    Owner Representative. Owner shall designate (by a Notice delivered to Contractor) an “Owner Representative,” who shall act as the single point of contact on behalf of Owner with respect to the prosecution and scheduling of the Work and any issues relating to this Agreement. Owner may designate a new Owner Representative from time to time by a Notice delivered to Contractor.

2.2    Operating Personnel. Owner shall provide Operating Personnel with requisite plant operating experience, who shall be licensed where necessary, to provide operating support to Contractor for testing and commissioning of each Block, Phase, and the PV Power Plant as provided in Sections 3.15 and 3.16.

2.3    Applicable Permits. Other than Contractor-Acquired Permits, Owner shall obtain and maintain in full force and effect all Applicable Permits. Owner shall comply with all requirements and perform all tasks identified as Owner's responsibility in the Division of CUP Responsibility Table attached hereto as Exhibit C-3. Owner agrees to provide prompt Notice to Contractor of any changes in its Applicable Permits to be obtained and maintained by it that could reasonably be expected to have a material adverse impact on the performance of the Work. ***.

2.4    Interconnection Facilities. Owner shall provide the Interconnection Facilities and the Owner-Provided Facilities and Services in accordance with the Schedule Milestones and the Owner Critical Path Dates.

2.5    Owner-Provided Information. Owner shall provide the Owner-Provided Information set forth in Exhibit A-2 to Contractor on or prior to the applicable Milestone Item as set forth in Exhibit G.

2.6    Owner Performance Security. Owner has, on or before the Effective Date, caused to be furnished to Contractor the *** and shall cause the same to be maintained in full force and effect until indefeasible payment in full of all such obligations and liabilities. ***.

2.7    Owner's Separate Contractors. Owner shall retain at Owner's sole cost, determination and responsibility, Owner's Separate Contractors. Contractor shall cooperate with all Owner's Separate Contractors who may be working at or near the Site. Contractor shall not allow it, or its Subcontractors, activities on the Site to unreasonably interfere with Owner's Separate Contractors. Owner shall cause Owner's Separate Contractors to comply with Contractor's directions in accordance with Contractor's Safety Program.

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2.8    Taxes and Permit Expenses. Owner shall pay in a timely manner any and all Owner Taxes, or in the event such Owner Taxes are paid by Contractor, or any Subcontractor, Owner shall promptly reimburse Contractor for same. Owner shall also pay in a timely manner any such other Taxes as are Owner's responsibility under Article 5. Owner shall also pay all Permit Expenses to the applicable Governmental Authorities and other third parties in connection with all Applicable Permits, excluding Contractor-Acquired Permits.

2.9    Access to Site. Owner shall provide reasonable access and use of the Site to Contractor and the Subcontractors for the purposes of allowing Contractor to perform its obligations and exercise its rights under this Agreement.

2.10    Cooperation. Owner shall cooperate and cause Owner's Separate Contractors to cooperate with Contractor and the Subcontractors who may be working at or near the Site. Owner shall not allow its, or its Affiliates' or any Owner's Separate Contractor's, operations and activities on the Site to interfere with the performance of the Work by Contractor.

3.    RESPONSIBILITIES OF CONTRACTOR

Contractor shall carry out the responsibilities allocated to Contractor under this Article 3 at Contractor's cost and expense.
3.1    General. Contractor shall perform, furnish and be responsible for all of the Work including all engineering, services, procurement, testing, commissioning, labor, PV Power Plant Hardware and supervision necessary to provide the PV Power Plant in accordance with the provisions of this Agreement. Contractor acknowledges and agrees that this Agreement constitutes a fixed price obligation by Contractor to engineer, design, procure, construct, test and commission the PV Power Plant, subject to the terms of this Agreement. Contractor acknowledges and agrees that, except as otherwise explicitly set forth in this Agreement, Contractor shall have sole control over the engineering, procurement, design and construction means, methods, techniques, sequences, and procedures and for the coordination of all portions of the Work under this Agreement.

3.2    Performance of Work. Contractor shall perform and complete all of the Work, and cause each Subcontractor to perform and complete each such Subcontractor's respective portion of the Work, in accordance with the terms of this Agreement and Industry Standards, and in compliance with Applicable Law and Applicable Permits. The Work shall be subject to the warranty provisions set forth in Article 18.

3.3    Design and Construction of PV Power Plant.

3.3.1    General. Contractor shall design, engineer and construct the PV Power Plant so that it meets the requirements of the Statement of Work and is capable of operation in compliance with this Agreement, all Applicable Laws, Applicable Permits and Industry Standards in effect as of the Effective Date. Contractor shall provide all engineering and design services necessary to set forth in detail the specifications, drawings and requirements for the procurement of PV Power Plant Hardware and for the construction of the entire PV Power Plant in a manner that

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satisfies the requirements of this Agreement. Contractor shall preserve all permanent survey construction monuments and benchmarks during its performance of the Work.

3.3.2    Commencement of Construction. Contractor shall achieve Commencement of Construction on or before September 26, 2011, or such later date as is consistent with the requirements of the Owner Financing Parties, provided, however, that Contractor's failure to timely achieve Commencement of Construction shall not constitute a Contractor Event of Default if such failure is caused by any action or inaction of Owner.

3.4    Contractor's Project Manager. Contractor shall designate a Contractor's Project Manager who shall have full responsibility for the prosecution of the Work and shall act as a single point of contact in all matters on behalf of Contractor. Contractor may designate a new Contractor's Project Manager from time to time by Notice delivered to Owner, subject to Owner's approval, not to be unreasonably withheld or delayed.

3.5    Utilities and Services.

3.5.1    Provision of Services. Contractor shall install, connect and maintain at its own expense during its performance under this Agreement, from the commencement of the Work until the Substantial Completion Date of the PV Power Plant, all utilities, facilities and services, as set forth in Exhibit A-1 (other than Owner-Provided Facilities and Services) required for the performance of the Work.

3.5.2    Payment. Contractor shall pay when due all construction utility usage charges and arrange with local authorities and utility companies having jurisdiction over the Site for the provision of utilities.

3.5.3    Supply of Construction Facilities. Other than Owner-Provided Facilities and Services, Contractor shall provide all construction facilities necessary to complete the PV Power Plant. Contractor shall obtain all supplies, equipment, materials or services required for the performance of the Work.

3.6    Inspection. Contractor shall perform all inspection, quality surveillance and other like services required for performance of the Work, including inspecting all PV Power Plant Hardware that comprise the PV Power Plant or that is to be used in the performance of the Work.

3.7    Organization. Contractor shall provide staff to supervise and coordinate the work of Contractor and Subcontractors on the Site. Contractor shall maintain adequate staff that are dedicated to the timely completion of the Work, and that have the technical and managerial expertise to control and execute the Work in accordance with the requirements of this Agreement. Contractor shall maintain a qualified and competent organization at the Site with adequate capacity and numbers of construction and commissioning personnel, equipment and facilities to execute the Work in accordance with the terms of this Agreement.

3.8    Contractor-Acquired Permits. Contractor shall obtain, at its sole cost, all Contractor-Acquired Permits. As necessary, Contractor shall provide reasonable technical

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support regarding plant design details or proposed construction processes to assist Owner in obtaining other Applicable Permits. Contractor shall comply with all requirements and perform all tasks identified as Contractor's responsibility in the Division of CUP Responsibility Table attached hereto as Exhibit C-3. ***.

3.9    Hazardous Materials Disposal System. Contractor shall prepare and maintain accurate and complete documentation of all Hazardous Materials used by Contractor or Subcontractors at the Site in connection with the Work, and of the disposal of any such Hazardous Materials, including transportation documentation and the identity of all Subcontractors providing Hazardous Materials disposal services to Contractor at the Site. Contractor shall be responsible for disposal of all wastes generated by it or its Subcontractors during the performance of the Work, including waste water, sanitary wastes, demolition debris, construction debris, spoil, Hazardous Materials for which Contractor is responsible hereunder, surplus excavation material, office wastes and waste but excluding wastes generated by the PV Power Plant from and after the Substantial Completion Date of any applicable Block, which will be responsibility of the Owner. All such wastes shall be handled, stored or disposed of in accordance with Applicable Law in a suitable off-site location. All costs and all regulatory obligations under Applicable Law in connection with the handling, storage and disposal of such wastes are the responsibility of Contractor.

3.10    Maintenance of Site. Contractor shall maintain the Site clear of debris, waste material and rubbish. Contractor at its sole cost and expense shall dispose of such debris, waste material and rubbish in accordance with Applicable Law.

3.11    Site Security. During the performance of the Work at the Site, Contractor shall provide all necessary and reasonably appropriate security at the Site and is responsible for the security of the Site and the protection of the Work.

3.12    Safety.

3.12.1    Contractor Responsibility for Safe Performance of Work. During the performance of the Work, Contractor shall be responsible for the safety of the Persons at the Site and for the safe performance of the Work. Contractor shall give notices and comply with Applicable Laws, ordinances, rules, regulations and lawful orders of public authorities bearing on the safety of persons or property or their protection from damage, injury or loss.

3.12.2    Contractor Safety Program.

(a)    Obligation to Provide Safety Program. No later than thirty (30) days before the mobilization at the Site, Contractor shall provide a safety program specifically designed for the Work. The safety program shall describe the safety program to be used by Contractor and the Subcontractors in the performance of the Work at the Site (the “Contractor's Safety Program”). Contractor's Safety Program shall be designed to provide a safe environment during the performance of the Work at such location and shall, among other things, seek to minimize the number of safety-related incidents during the performance of the Work. Contractor's Safety Program shall include requirements
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for the safety pre-qualification of each of the Subcontractors and a drug and alcohol program (which shall include a drug testing policy).
(b)    Owner Review of Safety Program. Owner shall have the right to review and comment on Contractor's Safety Program and Contractor shall cooperate with Owner to incorporate reasonably requested changes into the Safety Program addressing such comments, provided, that if such incorporation of Owner's comments would add to the scope of the Work or materially change the Critical Path, Contractor shall be entitled to a Change In Work.
(c)    Coordination with Insurance Providers. Contractor shall coordinate with its insurance providers and ensure Contractor's Safety Program conforms with the requirements of Contractor's insurance providers.
3.12.3    Contractor Safety Representative. Contractor shall designate a safety representative with the necessary qualifications and experience to supervise the implementation of and monitoring of all safety precautions and programs related to the Work. The safety representative shall make routine inspections of the Site and shall hold safety meetings with Contractor's personnel, Subcontractors and others, as Contractor reasonably deems appropriate.

3.12.4    Contractor's Duty to Notify regarding Incidents or Accidents. Contractor shall promptly provide to the Owner Representative:

(i)    immediate oral notice of any incident or accident related to the Work;
(ii)    written reports of any incidents or accidents that occur related to the Work, no later than twenty-four (24) hours after such incident or accident;
(iii)    written accident reports of OSHA lost time or recordable accidents that occur related the Work, prepared in accordance with the safety program approved by Owner pursuant to this Section 3.12; and
(iv)    copies of all written communications, including notices, with Governmental Authorities and insurance companies with respect to accidents that occur related to the Work, and thereafter provide such written reports relating thereto as Owner may reasonably request.
In the event the Owner Representative or any other representatives of Owner observes unsafe behaviors or practices by any of Contractor's or any Subcontractor's personnel that are not in compliance with Contractor's Safety Program, Owner shall Notify Contractor and Contractor shall act promptly to take reasonable action to correct such unsafe behavior or practice, and shall promptly Notify Owner in writing of actions reasonably taken by Contractor to prevent such unsafe behavior or practice from occurring again. Notwithstanding Owner's review of Contractor's Safety Program for the Work or Owner's exercise of its rights to Notify Contractor of unsafe practices or behavior pursuant to the preceding sentence, Contractor shall be solely responsible for implementing Contractor's Safety Program and shall perform the Work, and shall
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cause the Subcontractors to implement, follow and perform the Work, in accordance with Contractor's Safety Program.
3.13    Quality Assurance Programs. Contractor shall use quality assurance programs throughout the performance of the Work. Contractor's standard quality assurance program is attached hereto as Exhibit W. Within thirty (30) days following the Effective Date, Contractor shall provide to Owner a quality assurance program specifically tailored to the PV Power Plant with which Contractor shall comply throughout the performance of the Work.

3.14    Contractor Deliverables. Contractor shall issue the Contractor Deliverables to Owner and to other parties in accordance with the Contractor Deliverables Table.

3.15    Training of Operating Personnel. Commencing no later than forty-five (45) days prior to the anticipated Phase Substantial Completion Date for Phase 1 and, again, 45 days prior to the anticipated PV Power Plant Substantial Completion, Contractor shall, or where applicable, shall cause the Subcontractors to, train designated Operating Personnel, including Owner's operations supervision employees in accordance with the training program set forth in Exhibit E.

3.16    Commissioning Personnel. Contractor shall provide or cause to be provided appropriate and qualified installation and commissioning personnel, all equipment, tools, construction and temporary material and all other labor necessary for all of the Work to achieve Substantial Completion of each Block, Phase or PV Power Plant, as applicable.

3.17    ***

3.18    Shipping.
  
3.18.1    General. Contractor shall provide all shipping and handling of PV Power Plant Hardware, construction material, and equipment, including customs clearance and any required storage and claims (except as set forth in any Material and Equipment Supply Agreement executed pursuant to Section 9.6 with respect to certain costs in connection with the equipment sold under that agreement).

3.18.2    Use of United States-flag Vessels. Contractor agrees:

(i) to utilize privately owned United States-flag commercial vessels to ship at least fifty percent (50%) of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this Agreement, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels; and
(ii) To furnish within twenty (20) days following the date of loading for shipments originating within the United States or within thirty (30) Business Days following the date of loading for shipments originating outside the United States, a legible copy of a rated, 'on-board' commercial ocean bill-of-lading in English for each shipment of cargo described in subparagraph (i) of this Section 3.18.2 to both the contracting officer (through the Contractor in the case of Subcontractor bills-of-lading)
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and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590
3.19    Davis-Bacon Act Requirements. Contractor shall comply with the requirements of the Davis-Bacon Act as set forth in Exhibit AA.
3.20    Escrow Agreement. Contractor shall enter into an agreement for the escrow of certain intellectual property rights in the form of the Escrow Agreement attached as Exhibit BB.

3.21    Subordination Agreement. Contractor shall enter into an agreement for the subordination of its claims of mechanics liens in the form of the Subordination Agreement attached as Exhibit DD. Contractor shall require that all Subcontractors with subcontract prices over *** enter into agreements for the subordination of their clams of mechanics liens substantially in the form of the Subordination Agreement attached as Exhibit DD.

3.22    Contractor Credit Support. ***, Contractor shall as of the date of this Agreement issue a Letter of Credit in the amount of *** running in favor of Owner and providing Credit Support to Owner for the payment by Contractor of its obligations and liabilities under this Agreement and attached hereto as Exhibit FF.

4.     COVENANTS, WARRANTIES AND REPRESENTATIONS

4.1    Contractor.

4.1.1    Organization, Standing and Qualification. Contractor warrants and represents that, as of the Effective Date, it is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business it presently conducts and contemplates conducting under this Agreement, and is and will be duly licensed or qualified to do business in good standing under the laws of the State of California and in each other jurisdiction in which the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be so licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

4.1.2    Due Authorization; Enforceability. Contractor represents and warrants that, as of the Effective Date, this Agreement has been duly authorized, executed and delivered by or on behalf of Contractor and is, upon execution and delivery, the legal, valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity.

4.1.3    No Conflict; No Liens. Contractor represents and warrants that, as of the Effective Date, the execution, delivery and performance by Contractor of this Agreement will not conflict with or violate (a) its organizational documents, (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement or other agreement or instrument to which Contractor is a

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Party or by which it or its properties may be bound or affected, or (c) any Applicable Laws. Except as specifically set forth in this Agreement, Contractor will not subject the PV Power Plant, the Project or any component part thereof or the Site or any portion thereof to any lien other than as contemplated or permitted by this Agreement.

4.1.4    Government Approvals. Other than with respect to the Contractor-Acquired Permits, Contractor represents and warrants that, as of the Effective Date, neither the execution nor delivery by Contractor of this Agreement requires the consent or approval of, or the giving of notice to or registration with, or the taking of any other action in respect of, any Governmental Authority.

4.1.5    No Suits, Proceedings. Contractor represents and warrants that, as of the Effective Date, there are no actions, suits, proceedings, patent or license infringements, or investigations pending or, to Contractor's knowledge, threatened against it at law or in equity before any court (United States or otherwise) or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in any materially adverse effect on Contractor's ability to perform its obligations under this Agreement. Contractor has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or any Governmental Authority that may result in any such materially adverse effect or such impairment.

4.1.6    Business Practices. Contractor represents and warrants that, as of the Effective Date, none of it or its representatives have made any payment or given anything of value, and Contractor covenants that it will not make any payment or give anything of value, in either case to any government official (including any officer or employee of any Governmental Authority) to influence his, her or its decision or to gain any other advantage for Owner or Contractor in connection with the Work to be performed hereunder. Contractor shall follow Contractor's Parent's Code of Business Conduct and Ethics policy with respect to all of the Work. None of Contractor nor any of its employees or agents shall intentionally take any action with respect to this Agreement or any of the Work that in any way violates any Applicable Laws concerning corrupt practices. Contractor shall immediately Notify Owner of any violation of this Section 4.1.6.

4.1.7    Owner-Provided Information. Contractor acknowledges that Owner does not make any representation or warranty with respect to the accuracy or completeness of documents or information (including oral statements) or opinions expressed by Owner, except as provided in the express representations and warranties of Owner in this Agreement and as set forth in the Owner-Provided Information, on which, in each case, Contractor shall be entitled to rely without verification. Except as set forth in the preceding sentence, Contractor acknowledges and agrees that it is not relying on Owner for any information, data, inferences or conclusions, or other information with respect to Site Conditions, including the surface conditions of the Site and the surrounding areas, or the Work.

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4.1.8    Licenses. Contractor covenants that all Persons who will perform any portion of the Work will have all business and professional certifications if and as required by Applicable Law to perform the services under this Agreement.

4.1.9    Cash Grant.
  
(a)     Contractor agrees that, at the request of Owner and subject to the Cost Segregation Firm entering into a non-disclosure agreement reasonably acceptable to Contractor, it shall reasonably cooperate with the Cost Segregation Firm selected by Owner, and will use reasonable commercial efforts to cause all Subcontractors and Suppliers to cooperate with such Cost Segregation Firm, to provide any and all cost segregation information, supporting documentation and records, including without limitation, supporting documentation for the detailed breakdown of all costs includible in the Work, copies of contracts, invoices for expenses and proof of payments, available to Contractor and/or any Subcontractor or Supplier that is reasonably required or reasonably requested by such Cost Segregation Firm in connection with the preparation of a Cost Segregation Report for each Phase. Pursuant to the non-disclosure agreement, the Cost Segregation Firm will be required to agree that it shall not, and that it shall cause its employees, agents and representatives not to, use the Confidential Information of Contractor for any reason other than the completion of the Cost Segregation Report. In addition, all detailed cost information including, but not limited to, cost and profit margins provided to the Cost Segregation Firm by Contractor supporting the Cost Segregation Report will not be disclosed to Owner or other third parties and will be held by the Cost Segregation Firm in confidence. Unless authorized by Contractor in writing prior to disclosure, the Cost Segregation Firm shall not, and shall cause its employees, agents and representatives not to, disclose the Confidential Information of Contractor to any third parties or to Owner's Representatives, except to those employees and representatives of the Cost Segregation Firm who reasonably require such information for the purposes of the Cost Segregation Report.
(b)    Notwithstanding anything else to the contrary in this Agreement, Contractor shall disclose and provide to the Owner such Confidential Information, that is not initially provided under any arrangement or action provided under Section 4.1.9(a), to the extent (x) the Independent Accountant is unable to certify and attest to the accuracy of costs for purposes of any application for a Cash Grant in respect of a Phase without that disclosure of Confidential Information, (y) Owner is advised by counsel that it would violate the penalties of perjury clause of a Section 1603 Application or Section 1603 Commencement of Construction Application without that disclosure of Confidential Information, or (z) the U.S. Department of the Treasury determines that it requires disclosure of Confidential Information to issue as great a Cash Grant as possible.
(c)    Contractor shall not claim, or cause to be claimed, any tax credit under Section 45 or Section 48 of the Code, or any cost recovery deduction, with respect to the property described in the Section 1603 Applications or Section 1603 Commencement of Construction Applications. Contractor shall not file its own Section 1603 Application or Section 1603 Commencement of Construction Application or make any other claim to a Cash Grant.
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(d)    Owner shall provide Contractor five (5) Business Days written notice before Owner submits a Section 1603 Commencement of Construction Application and/or Section 1603 Application. In connection with Owner filing a Section 1603 Commencement of Construction Application or Section 1603 Application, Contractor shall provide a statement, signed under penalties of perjury and otherwise in compliance with the Cash Grant Guidance, describing the Work that both commenced under this Agreement after the Effective Date (but including any Work performed under the PCA) and has been completed prior to the earlier of the date of such certification and December 31, 2011.
4.1.10    Financial Condition. Contractor represents and warrants that Contractor is financially solvent, able to pay its debts as they mature and possesses sufficient working capital to complete its obligations under this Agreement.

4.2    Owner.

4.2.1    Organization, Standing and Qualification. Owner represents and warrants that, as of the Effective Date, Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business Owner presently conducts and contemplates conducting, and is and will be duly licensed or qualified to do business and in good standing in each jurisdiction wherein the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

4.2.2    Due Authorization; Enforceability. Owner represents and warrants that, as of the Effective Date, this Agreement has been duly authorized, executed and delivered by or on behalf of Owner and is, upon execution and delivery, the legal, valid, and binding obligation of Owner, enforceable against Owner in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and by general equitable principles.

4.2.3    No Conflict. Owner represents and warrants that, as of the Effective Date, the execution, delivery and performance by Owner of this Agreement will not conflict with or violate: (a) its organizational documents; (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement or other agreement or instrument to which Owner is a Party or by which it or its properties may be bound or affected; or (c) any Applicable Laws.

4.2.4    Governmental Approvals. Except for those permits listed in Exhibit C-2, Owner represents and warrants that all Applicable Permits either have been obtained by Owner and are in full force and effect on the Effective Date or will be obtained and will be in full force and effect on or prior to the date on which they are required, under this Agreement and Applicable Law, so as to permit Contractor to

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commence and prosecute the Work to completion in accordance with the CPM Schedule.

4.2.5    No Suits, Proceedings. Owner represents and warrants that, as of the Effective Date, there are no actions, suits, proceedings or investigations pending or, to Owner's knowledge, threatened against it at law or in equity before any court (United States or otherwise) or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in any materially adverse effect on Owner's ability to perform its obligations under this Agreement. Owner has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any Governmental Authority that may result in any such materially adverse effect or such impairment.

4.2.6    Land. Owner represents and warrants that it holds good and defensible leasehold title in respect of the Site which is sufficient for the execution of the Work and will provide Contractor with all unrestricted access necessary to the Site to perform the Work.

4.2.7    Site Conditions. Owner represents and warrants that the Owner Provided Information contained in Exhibit A-2 is accurate and includes material information relating to the actual Site Conditions.

4.2.8    Financial Condition. Owner represents and warrants that Owner is financially solvent, able to pay its debts as they mature and possesses sufficient working capital to complete its obligations under this Agreement.

5.    COST OF WORK

5.1    Contract Price. In consideration of Contractor's performance of the Work, Owner shall pay to Contractor a contract price of *** (the “Contract Price”). The Contract Price shall be payable in accordance with the Progress Payment Schedule and Article 6 of this Agreement. The Contract Price shall not be changed nor shall Contractor be entitled to any other compensation, reimbursement of expenses or additional payment of any kind without prior written authorization of Owner or as otherwise specifically set forth in this Agreement (including Section 5.2, Article 8 and Article 17). Payments shall be made at the times and in the manner provided in Article 6. For the avoidance of doubt, the Contract Price is inclusive of Contractor Taxes, but is exclusive of all Owner Taxes and builder's all risk insurance, which shall be payable by Owner in accordance with Section 22.4.

5.2    Taxes.

5.2.1    Taxes Included and Excluded in Contract Price. The Contract Price excludes any and all Owner Taxes, which shall be the sole responsibility of Owner, and Owner shall fully indemnify Contractor against any and all such Owner Taxes. The Contract Price includes any and all Contractor Taxes, which shall be the sole responsibility of Contractor, and Contractor shall fully indemnify Owner against any and all such Contractor Taxes.

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5.2.2    Payment of Taxes. Contractor shall timely pay all Contractor Taxes assessed against it under Applicable Law in connection with Work under this Agreement and shall make any and all payroll deductions required by Applicable Law. Owner shall timely pay all Owner Taxes due for which it is responsible under Applicable Law. In the event Contractor or its Subcontractors are required under Applicable Law to pay any Owner Taxes, Contractor or its Subcontractors shall timely pay such amounts, and Owner shall reimburse Contractor within thirty (30) days of delivery of Contractor's invoice for such amounts in accordance with Article 6. In the event Contractor is required under Applicable Law to withhold or impose any Owner Taxes from Owner on any payment under Article 6, Owner shall pay to Contractor such Taxes and Contractor shall timely remit such Taxes to the applicable Governmental Authority under Applicable Law. In the event Owner is required under Applicable Law to withhold or impose any Contractor Taxes from Contractor on any payment under Article 6, Owner shall timely remit such Taxes to the applicable Governmental Authority under Applicable Law. In the event Owner is required under Applicable Law to pay any Contractor Taxes that cannot be fully applied toward payments to be made under Article 6, Owner shall timely pay such amounts, with Contractor to promptly reimburse Owner for the same within ten (10) Business Days, following receipt by Contractor of an invoice for such amounts.

5.3    Fiscal Agreement Costs. *** shall have full financial responsibility and pay any and all costs associated with those obligations set forth in the County Fiscal Agreement attached hereto as Exhibit CC including all costs related to guaranteed tax true-up payments, impact payments and ongoing costs related to the decommissioning security but specifically excluding the ultimate obligation to pay for the decommissioning of the Project. To the extent any credit support or enhancement is required under the County Fiscal Agreement, *** shall be exclusively responsible for the cost of providing such credit support or enhancement but, except where any draw on such credit support or enhancement is due to *** breach of the provisions of the County Fiscal Agreement regarding such credit enhancement, *** shall be exclusively responsible for the cost of any draws made against such credit support or enhancement and any obligation to refresh such credit support or enhancement after such draw. Other than with respect to the cost of decommissioning the Project and the costs described to be *** costs in the immediately preceding sentence, *** shall have no obligation to stand behind, repay or otherwise indemnify *** for any costs under the County Fiscal Agreement.

5.4    Cash Grant Intention and Turnover. It is the intention of the Parties that Owner is the owner of the PV Power Plant and entitled to any Cash Grant payable in respect thereof. Consequently, in the event Contractor receives the Cash Grant in circumstances where Contractor has not reacquired the PV Power Plant or a Phase thereof pursuant to this Agreement or any other agreement between Owner, NRG or an affiliate of NRG on the one hand and Contractor or an Affiliate of Contractor on the other hand, Contractor shall segregate and hold in trust for Owner any such amounts received, and remit any such amounts received to Owner promptly, but in no event more than five (5) days after receipt thereof.

6.    TERMS OF PAYMENT

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Concurrently with the execution and delivery of this Agreement, Owner is making an initial payment to Contractor as specified on the attached Exhibit I-1. In addition, Owner shall make payments to Contractor as follows:
6.1    Monthly Invoicing. Subject to the terms of this Agreement, Owner shall make progress payments to Contractor on a monthly basis in accordance with the Progress Payment Schedule attached hereto as Exhibit I-1, provided, however, that the cumulative payments of the Contract Price shall not exceed the Cumulative Maximum Amounts as set forth in Exhibit I-2. In connection with a Change in Work for which schedule relief is provided, the CPM Schedule and the Progress Payment Schedule shall be equitably adjusted to account therefor in a Change in Work Form pursuant to Article 17. Subject to the provisions of this Article 6, Contractor shall submit a monthly Contractor's Invoice to Owner in accordance with Section 6.3. Payments due Contractor under this Agreement shall be electronically transferred by wire transfer to the bank account and in accordance with the bank instructions identified in Contractor's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields. All payments shall be made in U.S. Dollars.

6.2    Progress Assessment. In order to verify the progress made by Contractor in connection with any Contractor's Invoice submitted by Contractor, Owner shall have the right to inspect the Work or any part thereof that Owner reasonably requests, provided, however, that, subject to Section 6.8, such inspections shall not delay payment by Owner to Contractor of any undisputed amount set forth on Contractor's Invoice.

6.3    Contractor's Invoices. On or about the fifth (5th) Business Day of each month after commencement of the Work, Contractor shall electronically deliver to Owner a Contractor's Invoice for the Work completed in relation to the applicable activities set forth in the Progress Payment Schedule in the immediately preceding month (or portion thereof with respect to the first month after commencement of the Work). Contractor shall not request in any Contractor's Invoice the payment of any sum attributable to Work for which Contractor has already been paid. Each Contractor's Invoice, with the exception of the Final Contractor's Invoice, shall:

(a)    (i) identify which applicable activities described on the Progress Payment Schedule for the Work have been completed; (ii) identify the related progress payments set forth on the Progress Payment Schedule for the Work that are then due; and (iii) identify any other known amounts then payable by Owner to Contractor under any provision hereof (without limiting Owner's right to dispute any amounts requested for payment pursuant to Section 6.8); (iv) identify any Owner Taxes that are either required to be withheld by or reimbursed to, Contractor; and (v) provide a summation of the previous amounts invoiced by Contractor and the payments made by Owner; and
(b)    be accompanied by: (i) with respect to Work for which payment is requested pursuant to such invoice, (A) conditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-1 and otherwise complying with the requirements of California
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Civil Code Section 3262(d)(1) (or any successor statute) from Contractor and (B) copies of conditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-1, and otherwise complying with the requirements of California Civil Code Section 3262(d)(1) (or any successor statute) from each Major Subcontractor with respect to Work performed and invoiced by each Major Subcontractor, in each case sufficient to release all liens and lien rights under Applicable Law upon receipt of such payment with respect to such Work; and (ii) with respect to Work for which payments had previously been made to Contractor, (A) unconditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-2, and otherwise complying with the requirements of California Civil Code Section 3262(d)(2) (or any successor statute) from Contractor and (B) copies of unconditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-2, and otherwise complying with the requirements of California Civil Code Section 3262(d)(2) (or any successor statute) from each Major Subcontractor with respect to amounts (if any) due to such Major Subcontractor which are not being contested in good faith by Contractor, in each case sufficient to release all liens and lien rights under Applicable Law with respect to such Work.
Contractor understands and agrees that any Contractor's Invoice that is inaccurate shall not, only to the extent of such deficiency, constitute a valid request for payment.
6.4    Owner Review. Within *** days after Owner receives a Contractor's Invoice and all accompanying documentation required by Section 6.3, Owner shall Notify Contractor concerning any dispute over the accuracy of, or entitlement to, any amount of the submitted Contractor's Invoice and the basis for such dispute. If Owner has not Notified Contractor within such *** day period of any good faith objection thereto, Owner shall be deemed to have approved such Contractor's Invoice.

6.5    Payments.

6.5.1    Payments. Subject to Section 6.8, Owner shall make payment to Contractor for the full undisputed amount specified in each invoice, except as set forth in Section 6.5.2 and Section 6.6, no later than *** days following the date of Owner's receipt of Contractor's Invoice and supporting documentation in the manner and detail and at the time required pursuant to Section 6.3. To the extent payment of a monthly invoiced amount would cause cumulative payments of the Contract Price to exceed the Cumulative Maximum Amounts set forth in Exhibit I-2, Owner may defer payment of such excess to the first monthly period whereby payment of such excess would not result in cumulative payments in excess of the Cumulative Maximum Amount for such period.

6.5.2    Offsets. Without limiting its rights under Section 6.6, Owner may offset against such payment any undisputed amount then due from Contractor

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pursuant to any provision of this Agreement; provided, however, that disputed amounts shall be handled in accordance with Section 6.8.

6.5.3    Form of Payment. All payments to be made to either Party under this Agreement shall be paid in Dollars and shall be paid electronically (by means of ACH or wire) in immediately available funds. All payments shall be due within *** days of the paying Party's receipt of the other Party's invoice (each, an “Invoice Payment”) or, if such date is not a Business Day, on the immediately succeeding Business Day, to such account as may be designated by each Party from time to time by Notice to the other Party in accordance with Article 29, provided, however, that banking transfer instructions have been provided by the invoicing Party to the paying Party at least five (5) Business Days before the first payment of the paying Party is due and payable.

6.5.4    Late Payments. Any undisputed payment due hereunder that is delinquent by more than *** Business Days, shall, beginning on the next calendar day, bear interest at the prime rate as published in “The Money Rates” Section of The Wall Street Journal (U.S. Edition) on the date that payment was due, plus *** per annum, until paid, but in any event not to exceed the maximum rate permitted by Applicable Law (the “Contract Interest Rate”). The payment of interest unaccompanied by payment of the delinquent payment shall not excuse or cure any Event of Default or delay in such payment. Contractor shall be responsible for paying all Subcontractors in connection with the Work completed by such Subcontractor.

6.6    Retention.

6.6.1    Amount of Retention. Owner shall retain and withhold payment of ***, without duplication, of all Invoice Payments made to Contractor (the “Retention”) such that, at all times and subject to Section 6.6.2, the Retention shall equal *** of the Gross Invoiced Amount, provided, that, Contractor, at its sole cost and at any time, may provide a Retention L/C and the amount of such Retention L/C shall reduce, dollar-for-dollar, the amount of the payments previously or thereafter withheld for Retention under this Section 6.6.1 and Owner shall pay to Contractor any such portion of the Retention for which the Retention L/C is substituted within five (5) days following Owner's receipt of such Retention L/C that is in accordance with this Section 6.6.1.

6.6.2    Release of Retention. Upon Substantial Completion of each Block, Owner shall release the Retention applicable to all amounts invoiced relating to such Block (or if any invoice relates to more than one Block, to the extent relating to such Block) (or, as applicable, the Retention L/C shall be reduced accordingly), except that Owner shall be entitled to deduct from the Retention released to Contractor the Punch List Holdback applicable to such Block; provided, (i) that on the PV Power Plant Substantial Completion Date, Owner shall release all remaining Retention with the exception of the Punch List Holdback associated with all Priority B Items still outstanding as of the PV Power Plant Substantial Completion Date, and (ii) that in the event of an Owner Caused Delay which results in deferral of a Block Substantial

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Completion Date for a period exceeding *** days, then Owner shall release the Retention for the subject Block less any applicable Punchlist Holdback. In the event a Block Substantial Completion is so deferred, Contractor shall continue with all other Work under this Agreement, and shall, upon completion of the Interconnection Facilities and any Network Upgrades, proceed, consistent with the maintenance of scheduling efficiency in the Work and adherence to the CPM Schedule, to perform any Work necessary to achieve Substantial Completion of the applicable Block.

6.6.3    Release of Punch List Holdback. On a monthly basis, Contractor shall invoice Owner for items on each Punch List which have been completed and accepted by Owner in accordance with Agreement in the preceding month and Owner shall release to Contractor the portion of the Punch List Holdback for such completed items.

6.7    Final Contractor's Invoice. On or after the date on which Contractor delivers to Owner a Notice of Final Completion in accordance with Section 15.7, Contractor shall submit a final Contractor's Invoice (a “Final Contractor's Invoice”) which shall set forth all amounts due to Contractor that remain unpaid in connection with the Work (including (i) any remaining Punch List Holdback that has not been released to Contractor in accordance with Section 6.6.3, (ii) any amount of Performance Liquidated Damages to be refunded by Owner to Contractor pursuant to Section 16.8, and (iii) any Owner Taxes paid by Contractor or any Subcontractor for which Owner has not reimbursed Contractor pursuant to Section 6.5). Unless Owner validly rejects Contractor's Notice of Final Completion in accordance with Section 15.6, Owner shall pay to Contractor the amount due under such Final Contractor's Invoice (the “Final Payment”) in accordance with Section 6.5 and issue to Contractor the Final Completion Certificate in accordance with Section 15.6. Contractor's Final Contractor's Invoice shall include (i) with respect to Work for which the Final Payment is requested, (A) conditional waiver and releases upon final payment substantially in the form of Exhibit F-3, and otherwise complying with the requirements of California Civil Code Section 3262(d)(3) (or any successor statute) from Contractor and (B) copies of conditional waiver and releases upon final payment substantially in the form of Exhibit F-3, and otherwise complying with the requirements of California Civil Code Section 3262(d)(3) (or any successor statute) from each Major Subcontractor with respect to work performed and invoiced by each Major Subcontractor, in each case sufficient to release all liens and lien rights under Applicable Law upon receipt of such Final Payment; and (ii) with respect to Work for which payments had previously been made to Contractor, unconditional waiver and releases upon final payment (to the extent not previously submitted) substantially in the form of Exhibit F-4, and otherwise complying with the requirements of California Civil Code Section 3262(d)(4) (or any successor statute) from Contractor and (B) copies of unconditional waiver and releases upon final payment (to the extent not previously submitted) substantially in the form of Exhibit F-4, and otherwise complying with the requirements of California Civil Code Section 3262(d)(4) (or any successor statute) from each Major Subcontractor with respect to amounts (if any) due to such Major Subcontractor which are not being contested in good faith by Contractor, in each case sufficient to release all liens and lien rights under Applicable Law with respect to such Work, provided that, if Contractor is unable to obtain all such waivers from any such Major Subcontractor, Contractor may, in lieu thereof, furnish to Owner a bond or other security acceptable to Owner to protect Owner, the PV Power Plant and the Site from any liens of such Major Subcontractor or any claims made on account of such liens.

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6.8    Disputes Regarding Payments. Subject to Contractor's rights and remedies under Article 20, failure by Owner to pay any invoiced amount disputed in good faith until resolution of such dispute in accordance with Article 31 hereof shall not alleviate, diminish, modify nor excuse the performance of Contractor or relieve Contractor's obligations to perform hereunder, subject to the provisions of such Article 31. Contractor's acceptance of any payment (including Final Payment), and Owner's payment of any invoiced amount, shall not be deemed to constitute a waiver of amounts that are then in dispute. Contractor and Owner shall use reasonable efforts to resolve all disputed amounts reasonably expeditiously and in any case in accordance with the provisions of Article 31. No payment made hereunder shall be construed to be acceptance or approval of that part of the Work to which such payment relates or to relieve Contractor of any of its obligations hereunder. If a Contractor's Invoice was properly submitted in accordance with all of the provisions of this Agreement and amounts disputed by Owner with respect to such invoice are later resolved in favor of Contractor, Owner shall pay interest on such disputed amounts due to Contractor, at the Contract Interest Rate, from the date on which the interest on such payment was originally due under Section 6.5.4 until the date such payment is actually received by Contractor. If Owner has paid any amounts pursuant to a Contractor's Invoice, which amounts are later disputed by Owner and such dispute is thereafter resolved in favor of Owner, Contractor shall refund any such payment and pay interest on such amount, at the Contract Interest Rate, from the date on which the payment was originally made by Owner until such refunded amount is received by Owner.

7.    COMMENCEMENT AND SCHEDULING OF THE WORK; DESIGN REVIEW

7.1    Notice to Proceed. Concurrently with the execution and delivery of this Agreement Owner is issuing to Contractor a Full Notice to Proceed instructing Contractor to commence performance of Work in accordance with the terms hereof.

7.2    Design Review. As of the date hereof, Owner and Contractor are continuing review the design and selection of equipment for Phase I. In order to afford Owner the opportunity to review Contractor's design and selection of equipment for each subsequent Phase, Contractor shall, on not less than fifteen (15) days prior notice to Owner and at a mutually agreed location, schedule a design review conference (“Design Review Conference”) with respect to the design and selection of equipment for each Phase. Each Design Review Conference shall take place not less than ten (10) days before Contractor submits each design submittal to the County of San Louis Obispo. Contractor shall bear the expenses of the conference facility and meals during the conference. Each of Owner and Contractor shall pay for the travel, lodging and other expenses of its own participants in the Design Review Conference.

7.3    CPM Schedule Submission. Within seven (7) Days after the Effective Date, Contractor shall prepare and submit to Owner for its review a level 2 critical path method schedule for the Work using Primavera Project Planner 6.0 (“Primavera”) based upon the Schedule Milestones set forth in Exhibit G. The CPM Schedule shall represent Contractor's best judgment as to how it shall complete the Work in compliance with the Schedule Milestones including the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date, and the Final Completion Guaranteed Date. Within *** Days after the Effective Date, Contractor shall provide to Owner for Owner's review a level 3 schedule for the Work using Primavera (“CPM Schedule”) based upon the Schedule Milestones

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set forth in Exhibit G. The CPM Schedule shall represent Contractor's best judgment as to how it shall complete the Work in compliance with the Schedule Milestones including the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date, and the Final Completion Guaranteed Date. The CPM Schedule shall, at a minimum, include the following activities for the Work: engineering, procurement, equipment fabrication, shipping, construction, commissioning, and testing. Without limiting the foregoing, the CPM Schedule shall: (i) show the duration, early start dates, early finish dates and available float for each activity, show activity number, activity description and responsible Party or Subcontractor, reflect logical relationships between activities with a reasonable duration for each activity, show an uninterrupted critical path from the Full Notice to Proceed through Substantial Completion and Final Completion; and (ii) include a general description of the Work being performed. With each update of the CPM Schedule, Contractor shall provide a material resource-loaded family of curves that supports the CPM Schedule and reflects Contractor's Progress Payment Schedule. Contractor shall use the CPM Schedule in planning, organizing, directing, coordinating, performing and executing the Work, and the CPM Schedule shall be the basis for evaluating progress of the Work.

7.4    Owner Review of the CPM Schedule. Owner may review the CPM Schedule for general conformance with this Agreement, including the Schedule Milestones. If Owner reasonably determines that the CPM Schedule does not conform with this Agreement or the Schedule Milestones in any respect, Contractor shall promptly revise and resubmit the CPM Schedule to Owner. Upon Owner's review of the CPM Schedule and Contractor's revision of the CPM Schedule to correct any deficiencies in the CPM Schedule noted by Owner, the CPM Schedule so reviewed and corrected shall be the baseline CPM Schedule for the Work. Owner's review of the CPM Schedule shall not relieve Contractor of any obligations for the performance of the Work, change the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Dates, or the Final Completion Guaranteed Dates.

7.5    Progress Reporting, Monthly Updates to CPM Schedule. Contractor shall prepare a Monthly Progress Report and submit it to Owner within five (5) days of the end of each month. As part of the Monthly Progress Report, Contractor shall update the CPM Schedule monthly to reflect the actual progress to date (“Monthly Updated CPM Schedule”); provided, however, Contractor may not modify the Phase Substantial Completion Guaranteed Dates or the PV Power Plant Substantial Completion Guaranteed Date without a Change In Work Form being executed pursuant to this Agreement, nor shall Contractor change any dates that relate to Owner's obligations without obtaining Owner's written consent. If any schedule changes affect a critical path for completion of any Scheduled Milestone, Contractor shall provide Owner with a written explanation of such change along with the Monthly Updated CPM Schedule. The Monthly Updated CPM Schedule shall be in the same detail and form as required by the CPM Schedule.

7.6    Thirty Day Look Ahead Schedule. As part of the Monthly Progress Report, Contractor shall submit to Owner a thirty Day look-ahead schedule (“30 Day Look-ahead Schedule”), which shall be based on the CPM Schedule showing in detail the activities to be performed during the next thirty (30) Days, including target, forecast, and actual dates for each activity, shall be detailed (at a minimum) at level 3 (within the meaning of Primavera), and shall meet all other requirements of a Monthly Updated CPM Schedule.

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7.7    Form of Submittals. All submittals by Contractor to Owner of the CPM Schedule and any Monthly Updated CPM Schedule shall be in accordance with Exhibit B.

7.8    Delay Response Plan. If, at any time during the prosecution of the Work, (i) should the Monthly Updated CPM Schedule show that any activity on the Critical Path of the CPM Schedule is delayed such that Phase Substantial Completion or PV Power Plant Substantial Completion will occur later than the applicable Phase Substantial Completion Guaranteed Date or PV Power Plant Substantial Completion Guaranteed Date, and (ii) Contractor or any of its Subcontractors are in Owner's reasonable judgment responsible for such delay, Owner may, in addition to any other remedies that it may have under this Agreement, require that Contractor prepare a plan to explain and display how it intends recover such delay (“Delay Response Plan”). Contractor shall do the following after the determination by Owner of the requirement for a Delay Response Plan:

7.8.1    Within *** days of such determination, Contractor shall prepare the Delay Response Plan and submit it to Owner for its review. Contractor shall prepare the Delay Response Plan even if Contractor disputes Owner's determination of the need for a Delay Response Plan. The Delay Response Plan shall represent Contractor's best judgment as to how it shall regain compliance with the CPM Schedule and demonstrate the ability to achieve the Schedule Milestones in accordance with this Agreement.

7.8.2    Within *** days of receipt of the Delay Response Plan, Contractor shall participate in a conference with Owner, and with any other Person, including Subcontractors, whom Owner designates to participate, to review and evaluate the Delay Response Plan. Any revisions necessary as a result of this review shall be resubmitted for review by Owner within three (3) days of the conference. The revised Delay Response Plan shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing the Work and for regaining compliance with and to achieve the Schedule Milestones in accordance with this Agreement.

7.8.3    As applicable, Contractor shall perform the Work in accordance with the Delay Response Plan.

7.8.4    Until such time as Owner is satisfied that the Delay Response Plan will result in the achievement of the Schedule Milestones in accordance with this Agreement, Contractor shall meet with Owner at the Site on a weekly basis to determine the effectiveness of the Delay Response Plan and to determine whether Contractor will achieve the Schedule Milestones in accordance with this Agreement. If, in the opinion of Owner, Contractor is still behind schedule, Contractor shall be required to prepare another Delay Response Plan to take effect immediately upon written approval by Owner. Contractor shall prepare such Delay Response Plan even if Contractor disputes Owner's opinion.

7.8.5    In preparing and executing the Delay Response Plan, Contractor shall take all reasonable steps to regain compliance with the CPM Schedule.

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7.8.6    The cost of preparing the Delay Response Plan shall be for Contractor's account.

7.8.7    Owner's requirement, review and approval of any Delay Response Plan shall not relieve Contractor of any obligations for the performance of the Work, change the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date or the Schedule Milestones.

8.    FORCE MAJEURE; EXCUSABLE EVENT

8.1    Certain Events. No failure or omission to carry out or observe any of the terms, provisions or conditions of this Agreement shall give rise to any claim by either Party against the other Party hereto, or be deemed to be a breach of, or default under, this Agreement if such failure or omission shall be caused by or arise out of a Force Majeure Event or an Excusable Event. No payment obligations of either Party that was due prior to the occurrence of a Force Majeure Event or Excusable Event causing the suspension of performance shall be excused as a result of such occurrence.

8.2    Notice of Force Majeure Event and Excusable Event. If either Party's ability to perform its obligations under this Agreement is affected by a Force Majeure Event or, in the case of Contractor, an Excusable Event, the Party claiming such event shall, promptly after it becomes aware of the occurrence of the event, and in any event no more than *** days after the claiming Party becomes aware of such occurrence, give Notice to the other Party (a “Delay Notice”) of the occurrence of such event, including what date the claiming Party became aware of the occurrence of such event and an estimate of the event's anticipated duration and effect upon the performance of its obligations (to the extent such information is available) and any action being taken to avoid or mitigate its effect. The claiming Party shall have a continuing obligation to deliver to the other Party regular updated reports and any additional documentation and analysis supporting its claim regarding such event promptly after such information is available to the claiming Party. Within *** days after a Force Majeure Event or Excusable Event has ended, the Party that was affected by such Force Majeure Event or Excusable Event shall give Notice to the other Party of: (i) the length of time such Force Majeure Event or Excusable Event was in effect; (ii) the effect such Party claims such Force Majeure Event or Excusable Event had on any Substantial Completion Guaranteed Date, on the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), or the Final Completion Guaranteed Date, as applicable and (iii) in the case of a Force Majeure Event or Excusable Event affecting Contractor's performance of its obligations hereunder, any additional costs incurred (which shall be determined in accordance with Article 17) by reason of such Force Majeure Event or Excusable Event.

8.3    Scope of Suspension; Duty to Mitigate. The suspension of, or impact on, performance due to a Force Majeure Event or an Excusable Event shall be of no greater scope and no longer duration than is required by the effect of such Force Majeure Event or Excusable Event. The Party entitled to claim such event shall use its commercially reasonable efforts:

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(a)    to mitigate the duration of, and costs arising from, any suspension or delay in, or other impact on, the performance of its obligations under this Agreement; and
(b)    to continue to perform its obligations hereunder not affected by such event.
When the claiming Party is able to resume performance of its obligations under this Agreement, such Party shall give Notice to the other Party to that effect.
8.4    Contractor's Remedies.

8.4.1    Force Majeure Events and Excusable Events. As Contractor's remedy for the occurrence of a Force Majeure Event or an Excusable Event and provided that Contractor has otherwise materially complied with the applicable provisions of Section 8.2, if a Force Majeure Event or an Excusable Event occurs: (a) the CPM Schedule, the applicable Work, the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), and any applicable Substantial Completion Guaranteed Date(s) affected by such Force Majeure Event or Excusable Event shall be equitably adjusted to account for the impact of such Force Majeure Event or Excusable Event on Contractor's performance of the Work and (b) if the delay due to a Force Majeure Event or Excusable Event exceeds ***, or if Contractor's costs increase by an amount exceeding *** despite Contractor's efforts to mitigate any such increase pursuant to Section 8.3(a), the Contract Price shall be increased by the sum of the actual and reasonably substantiated costs incurred by Contractor attributable to such Force Majeure Event or Excusable Event.

8.4.2    Changes In Work. Upon the occurrence of a Force Majeure Event or an Excusable Event for which Contractor is entitled to a change in the Contract Price, the CPM Schedule and the applicable Work (and any other key dates, including the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), and any applicable Substantial Completion Guaranteed Date(s)) affected by such Force Majeure Event or Excusable Event, Contractor and Owner shall prepare a Change In Work Form in accordance with Article 17. Contractor's sole remedy for the effects of a Force Majeure Event or Excusable Event on Contractor's performance hereunder shall be the changes to this Agreement as set forth in Section 8.4.1.

8.5    Termination Due to Force Majeure and Excusable Event.

8.5.1    Termination Due to Prolonged Force Majeure Event. If a Force Majeure Event has occurred and Contractor is prevented from performing the Work for more than *** consecutive days as a result thereof, either Party may terminate this Agreement by Notice to the other Party.

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8.5.2    Termination Due to Prolonged Excusable Event. If any Excusable Event has occurred and continues for more than *** consecutive days: (i) Contractor may terminate this Agreement by Notice to Owner and (ii) except if such Excusable Event is the result of an Owner-Caused Delay, Owner may terminate this Agreement by Notice to Contractor.

8.5.3    Contractor Right to Payment. Upon any termination pursuant to Section 8.5.1 or Section 8.5.2, Contractor ***.

9.    SUBCONTRACTORS AND SUPPLIERS

9.1    Subcontracts Generally.

9.1.1    Subject to Section 9.2, Contractor may have portions of the Work performed by Subcontractors or Suppliers, including its Affiliates or their employees, provided, that in such event, Contractor shall remain responsible for such Work and Owner will look solely to Contractor as if the Work were performed by Contractor, and Contractor shall cause such Subcontractors and Suppliers to comply with the obligations of Contractor hereunder to the extent applicable to the Work they perform. The total aggregate value of all agreements between Contractor and all Subcontractors that are not required to provide the lien waivers described in Section 6.3 and 6.7 shall not exceed ***.

9.1.2    Not less than ten (10) Business Days prior to entering into any agreement with a Subcontractor in respect of a contract that has an estimated value less than *** for any portion of the Work, Contractor shall Notify Owner of the proposed agreement. Within five (5) Business Days of such Notice, Owner shall Notify Contractor of any election to apply Section 1.A.(2) or Section or 1.A.(3) of Exhibit CC to such agreement. In the event Owner fails to timely provide such Notice, it shall be deemed that Section 1.A.(3) of Exhibit CC shall apply to such agreement.

9.2    Use of Specified Suppliers and Specified Subcontractors. Set forth in Exhibit L is a schedule of Specified Suppliers and Specified Subcontractors who, notwithstanding anything to the contrary herein, Contractor shall be entitled to engage in furtherance of Contractor's obligations under this Agreement without the consent of Owner. Contractor shall Notify Owner of any additional suppliers or subcontractors that Contractor anticipates engaging that, if engaged, would be deemed a Specified Supplier or Specified Subcontractor. Owner shall have the right to review and approve such engagement, such approval not to be unreasonably withheld, delayed or conditioned, and, following such Owner approval, Exhibit L shall be deemed to be amended to reflect such additional approved Specified Supplier or Specified Subcontractor (which thereafter shall be deemed a Specified Supplier or Specified Subcontractor, as applicable). ***. Contractor shall update and amend Exhibit L by Notice to Owner from time to time as necessary to reflect additions or changes thereto in accordance with this Section 9.2. Contractor acknowledges and

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agrees that it shall remain fully responsible and liable for performance of any obligations of its Suppliers and Subcontractors.

9.3    Assignment. No subcontract or purchase order shall bind or purport to bind Owner, but each subcontract and purchase order with a Major Subcontractor shall provide for the assignment of such subcontract or purchase order to Owner, or at Owner's request, to the Owner Financing Parties (if any), upon the termination of this Agreement pursuant to Section 20.1, provided that each assignee (except for collateral assigns) shall have sufficient creditworthiness, established to Contractor's or the applicable Major Subcontractor's satisfaction, to meet its payment obligations to such Major Subcontractor.

9.4    Supply of Inverter Equipment. Contractor agrees that, unless otherwise consented to in writing by Owner, the PV Power Plant shall be built with inverter equipment supplied by a Specified Supplier set forth in Exhibit L, provided such inverter equipment meets the requirements of this Agreement and all Applicable Laws and Applicable Permits.

9.5    Supply of Photovoltaic Modules. Contractor shall build the PV Power Plant with photovoltaic modules manufactured by SunPower Corporation or its Affiliates. Such modules shall meet the requirements of this Agreement and all Applicable Laws and Applicable Permits.

9.6    Separate Owner Purchase of Photovoltaic Modules and Inverter Equipment. Notwithstanding anything else to the contrary within this Agreement, including (without limitation) Sections 9.4, 9.5 19.2, 23.1 and 23.2 hereof:

9.6.1    Upon delivery of written notice from Owner to Contractor no later than November 1, 2011, Contractor and Owner shall execute and deliver to each other one or more Materials and Equipment Supply Agreements, each of which shall be in the form substantially set forth in Exhibit EE hereto. Owner shall in such notice identify for which Phase the inverter equipment and/or PV modules to be separately sold to Owner under that Materials and Equipment Supply Agreement shall be used.
  
9.6.2    Contractor shall use and incorporate the PV modules and/or inverter equipment sold to Purchaser under any Materials and Supply Agreement into the Phase set forth in each of such Materials and Equipment Supply Agreement and such notice delivered under Section 9.6.1 in respect of such Materials and Equipment Supply Agreement and otherwise in accordance with this Agreement.

9.6.3    Contractor represents and warrants that the prices charged by Contractor to Owner for PV modules and/or inverter equipment sold to Purchaser under each Materials and Equipment Supply Agreement represent the reasonable fair market value of such PV modules and inverter equipment. Owner reserves the right to audit, through the use of a mutually agreed third Party, Contractor's records to validate compliance with this provision.

9.6.4    Owner shall notify Contractor of any material communications between Owner or Owner Parent, on the one hand, and the U.S. Department of the Treasury, on the other hand, within five (5) Business Days after such material

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communication has been sent or received by Owner or Owner Parent, regarding any Cash Grant with respect to any Phase or the Project or any application for such a Cash Grant. Owner shall provide Contractor with the opportunity to meaningfully participate in meetings and any proceedings involving such applications or Cash Grant (at Contractor's own cost and expense). ***.

10.    LABOR RELATIONS

10.1    General Management of Employees. Notwithstanding the provisions of Section 10.3, and subject to Section 10.5, Contractor shall preserve its rights to exercise and shall exercise its management rights in performing the Work. Such management rights shall include the rights to hire, discharge, promote and transfer employees; to select and remove persons or supervision; to establish and enforce reasonable standards of production; to introduce labor saving PV Power Plant Hardware; to determine the number of craftsmen necessary to perform a task, job or project; and to establish, maintain and enforce rules and regulations conducive to efficient and productive operations.

10.2    Project Labor Agreement. Contract has caused Fluor Constructors International, Inc. (“Fluor”) to assign to Contractor the PLA, and Contractor has assumed all obligations of Fluor thereunder. The Assignment and Assumption Agreement is attached hereto as Exhibit Z-1.

10.3    Labor Disputes. Contractor shall use reasonable efforts to adopt policies and practices designed to avoid Labor Disputes and to minimize the risk of labor-related delays or disruption of the progress of the Work. Contractor shall advise Owner promptly, in writing, of any actual or threatened Labor Dispute of which Contractor has knowledge that might materially affect the performance of the Work by Contractor or by any of its Subcontractors. Notwithstanding the foregoing, the settlement of Labor Disputes shall be at the discretion of the Party having the difficulty.

10.4    Personnel Documents. Contractor shall ensure that at the time of hiring, all its personnel and personnel of any Subcontractors performing the Work on the Site are in possession of all such documents as may be required by any and all Applicable Laws.

10.5    Key Personnel. Contractor shall provide staff to supervise and coordinate the Work of Contractor and its Subcontractors on the Site. Subject to Contractor's right to terminate the employment of such personnel pursuant to Section 10.1, Contractor shall ensure that the Key Personnel shall at all times hold and perform the duties of their respective positions (other than

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with respect to Key Personnel who terminate their employment with Contractor). Any replacement of the Key Personnel shall be subject to the prior written consent of Owner, which shall not be unreasonably withheld or delayed. If Owner fails to respond to a request for consent within five (5) business days after Contractor's request, Owner shall be deemed to have consented to including the proposed individual among the Key Personnel.

10.6    Replacement of Employees and Other Persons at Owner's Request. Notwithstanding anything in this Article 10 to the contrary, within forty-eight (48) hours after receiving a written request by Owner, which request shall include reasonable substantiating details, Contractor shall remove from the PV Power Plant, the Site, and from any performance of the Work, and cause any Subcontractor to remove from the PV Power Plant, the Site and from any performance of the Work, as soon as reasonably practicable, any Person performing the Work (including any of the Key Personnel) whom Owner reasonably believes to be creating a material safety hazard or who engages in misconduct, is incompetent or negligent or whose off-Site conduct Owner reasonably believes is harming or having a negative effect on the perception of the Project or Owner's relationship with the surrounding community. In the event Contractor disagrees that any such Person should be removed pursuant to this Section 10.6, Owner and Contractor shall submit such disagreements to their senior management pursuant to Section 31.3.

11.    INSPECTION

11.1    Inspection. Owner and Owner Representatives, including Owner's Engineer, shall have the right to observe and inspect the Work. Such observations and inspections (i) shall not unduly interfere with performance of the Work, (ii) shall be arranged at reasonable times and with reasonable advance Notice to Contractor and (iii) shall comply with Applicable Law and this Agreement, including Contractor's Safety Program.

12.    SITE CONDITIONS

12.1    Assumed Site Conditions. ***

12.2    Additional Site Condition Information. Owner shall promptly provide to Contractor any additional information relating to Site Conditions that Owner or its Affiliates discover or that comes into Owner's or its Affiliates' possession from time to time.

13.    PERFORMANCE GUARANTEE; COMMISSIONING; TESTING

13.1    Performance Guarantee and Other Requirements. Contractor shall perform the Work so that each Phase and the PV Power Plant satisfies the applicable Performance Guarantee and other requirements set forth in Exhibit H-2, Exhibit H-3, and Exhibit H-4, respectively.

13.2    Commissioning Procedures. Contractor shall provide a Commissioning Plan for each Block and each Phase, as applicable, in accordance with the Commissioning Procedures.

13.3    Performance Acceptance Test Procedures and PV Power Plant Functional Test Procedures. Contractor shall perform the Performance Acceptance Tests for each Block,

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each Phase and the PV Power Plant in accordance with the Performance Acceptance Test Procedures and, as it relates to the PV Power Plant, the PV Power Plant Functional Test Procedures, all as set forth in the applicable Exhibit H.

14.    SYSTEMS, PERFORMANCE ACCEPTANCE TESTS, AND COMPLETION

14.1    System Turnover.

14.1.1    Designation of Systems. Within *** following the date Owner issues the Notice to Proceed, Contractor shall designate the functional boundaries of discrete parts, components and/or areas of the Facility (each a “System”) that will be utilized by Contractor to facilitate Pre-Commissioning and Commissioning and the orderly turnover of each System of the Facility to Owner and shall submit such designations to Owner for Owner's written approval.

14.1.2    Preparation of System Turnover Package. For each System designated in accordance with Section 14.1.1, Contractor shall develop a System turnover package in accordance with Exhibit B (the “System Turnover Package”).

14.1.3    Preparation of Facility Commissioning Plan. Not less than *** prior to the scheduled date for commencement of Commissioning of the first Block, Contractor shall submit to Owner, for its review and approval, the proposed Commissioning Plan developed in accordance with the requirements set forth in Exhibit M. Owner will review and respond to Contractor's proposed Commissioning Plan within thirty (30) Days following submission to Owner, and the Parties and Owner's Representative shall meet to finalize the Commissioning Plan within five (5) Days of Owner's Representative's response. Thereafter, Contractor shall incorporate any necessary edits to the proposed Commissioning Plan and submit the final version of the Commissioning Plan to Owner within thirty (30) Days of such meeting. Owner's review and approval of the Commissioning Plan shall in no way relieve Contractor of its responsibility for performing the Work in compliance with this Agreement.

14.1.4    Acceptance of a System for Commissioning. As soon as Contractor has completed all Pre-Commissioning activities associated with a System, Contractor shall submit to Owner the initial System Turnover Package for such System. Upon receipt, Owner shall review the System Turnover Package and within ten (10) Days of receipt advise Contractor whether it accepts such System Turnover Package. Upon verification by Owner that a System Turnover Package is complete Owner shall accept the System Turnover Package and shall evidence such acceptance by written notification thereof to Contractor.

14.1.5    Commissioning of a System. Upon Owner's acceptance of a System Turnover Package, Contractor shall proceed with the Commissioning activities associated with such System and conduct all functional testing of the System, as set forth in the Commissioning Plan developed in accordance with Section 14.1.3.

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14.1.6    Classification of Punch List Items. With each System Turnover Package submitted to Owner, Contractor shall include a punch list for each individual System to compile and update, on a continuing basis, a master list of all outstanding items requiring completion or rectification to achieve, as applicable, Substantial Completion and Final Completion including (i) all outstanding punch list items for each System, and (ii) any other Work remaining to be completed to achieve, as applicable, Substantial Completion and Final Completion (the “Punch List”). The Punch List shall contain:

(a)    Those items, the lack of which or the failure to rectify or complete prior to the applicable Substantial Completion which when considered individually or in the aggregate of all Punch List items for the PV Power Plant, would preclude the achievement of the applicable Substantial Completion, including any defect in the design, construction, installation, operation or performance of the System or incomplete Work, that (i) adversely affects the ability of the System or any part of the PV Power Plant to be operated safely and in compliance with Applicable Law or the manufacturer's or vendor's operations and maintenance expectations and recommendations, (ii) prevents, interrupts, disrupts or interferes with or may prevent, interrupt, disrupt or interfere with the normal and continuous operation of such System or any part of the PV Power Plant in accordance with the Plant Specifications (“Priority A Items”); and.

(b)    Those items, the lack of which or the failure to rectify or complete which would not preclude the achievement of an applicable Substantial Completion but would preclude the achievement of Final Completion (“Priority B Items”). Priority B Items do not and cannot include Priority A Items.
Included with each Punch List submitted by Contractor under this Section 14.1.6, Contractor shall include, for Owner's approval, its cost estimate for rectifying or completing each Priority B Item (the “Punch List Amount”). Within five (5) Business Days of receipt of each Punch List, Owner shall inform Contractor whether it disagrees with Contractor's estimated Punch List Amounts. If Owner does not notify Contractor of its disagreement with Contractor's estimated Punch List Amounts within such five (5) Business Day Period, the Punch List Amounts shall be deemed approved by Owner. Any disagreement as to Punch List Amounts shall be resolved pursuant to Article 31.
14.1.7    Owner's Right to Identify Punch List Items. Notwithstanding anything herein to the contrary, Owner may, at any time prior to Final Completion, notify Contractor in writing of any deficiency in or incomplete portion of the Work to be added to the Punch List for correction or completion by Contractor in accordance with this Agreement, provided, however, that any such deficiency which constitutes a Priority A Item and which is discovered by or reported to Contractor prior to Substantial Completion shall, at the election of Owner (i) be remedied by Contractor prior to the achievement of Substantial Completion, or (ii) be added to the Punch List as a Priority B Item for remediation prior to Final Completion.

14.1.8    Completion of Punch List Items.

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14.1.8.1    Prior to the applicable Substantial Completion Contractor shall rectify or complete in accordance with the standards set forth in this Agreement, including the Plant Specifications and the Scope of Work, all Priority A Items which have been identified and placed on the Punch List prior to Substantial Completion.

14.1.8.2    Prior to Final Completion, Contractor shall rectify or complete in accordance with the standards set forth in this Agreement, including the Specifications and the Scope of Work, all Priority B Items which have not been satisfactorily rectified or completed prior to Substantial Completion.
14.1.8.3    In the event that Contractor fails to commence in a reasonable period of time after the applicable Substantial Completion or to diligently proceed thereafter with the rectification or completion of Priority B Items remaining at or after the applicable Substantial Completion so as to rectify or complete such Priority B Items by the Final Completion Guaranteed Date, Owner may rectify or complete such Priority B Items itself or through its designee at the expense of Contractor. In the event Owner elects to rectify or complete such Priority B Items, either itself or through a designee, Contractor shall immediately pay Owner (directly, or through forfeiture of the applicable Punch List Holdback amount) all costs and expenses incurred in rectifying or completing such Priority B Items.

14.1.8.4    Following Substantial Completion, Contractor shall complete any outstanding Priority B Items so as not to interrupt, disrupt or interfere with the normal and continuous operation of any portion of the PV Power Plant; provided, however, should an unforeseen circumstance arise such that the completion of any such Priority B Items may cause interruption, disruption or interference with the normal and continuous operation of any portion of the PV Power Plant, Contractor shall complete such Priority B Items during scheduled or unscheduled facility downtime or as otherwise directed by Owner so as not to cause any interruption in Owner's commercial activities at the Site. All Priority B Items shall be completed by the Final Completion Guaranteed Date. In no event shall this Section be interpreted to modify the definition of Priority B Items, as such items are not to be of the character that could interrupt, disrupt or interfere with the normal and continuous operation of any portion of the PV Power Plant.

14.2    Acceptance Tests. Contractor shall perform the Performance Acceptance Tests and the PV Power Plant Functional Tests in accordance with the Performance Acceptance Test Procedures and PV Power Plant Functional Test Procedures. Contractor shall give advance Notice (which Notice may be by email) to Owner of the performance of any Performance Acceptance Test or PV Power Plant Functional Tests at least *** weeks prior to commencing such tests. Contractor shall keep Owner continuously apprised of the schedule for Performance Acceptance Tests and the PV Power Plant Functional Tests including any changes in the schedule, the commencement and performance of such tests, and shall give Owner Representative at least *** advance Notice (which Notice may be by email) of the re-performance of any such tests.

14.2.1    Test Reports. Contractor shall submit a test report for each Performance Acceptance Test and PV Power Plant Functional Tests performed by Contractor within *** days after the completion of such Performance Acceptance

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Test, which report shall provide the such test results, together with a comparison to, and showing of compliance with, the applicable criteria and other testing requirements and criteria set forth in Exhibit H-1, H-2, H-3, and H-4, as applicable. Contractor shall cause all reports to contain the test data and calculations to allow Owner to verify the conclusions of such report.

14.2.2    Owner's Right to Observe Testing. Representatives of Owner, including Owner's Engineer, shall have the right to be present during any tests performed by Contractor under this Article 14.

14.2.3    Failure to Pass Acceptance Tests and PV Power Plant Functional Tests; Non-Conforming Work. Subject to Sections 16.4 through 16.7, if any Block, Phase, or the PV Power Plant as a whole, shall not pass the applicable Performance Acceptance Test or PV Power Plant Functional Tests, Contractor shall, at Contractor's sole cost and expense (subject to Article 8), in accordance with the Performance Acceptance Test Procedures or the PV Power Plant Functional Test Procedures, take such corrective actions as to such Block, the Phase or the PV Power Plant as a whole, as the case may be, to address such failure to pass the Performance Acceptance Test or the PV Power Plant Functional Test Procedures; provided that all such corrective action shall otherwise be in compliance with the requirements for the Work hereunder. If at any time during and promptly after completion of the Performance Acceptance Test or the PV Power Plant Functional Tests (or any re‑performance of any such tests or pursuant to any Remedial Plan, and regardless of achievement of the Performance Guarantee or Minimum Performance Guarantee), Owner advises Contractor in writing of any Defect that was discovered during a Performance Acceptance Test or PV Power Plant Functional Tests, Contractor shall, at Contractor's sole cost and expense (subject to Article 8), correct any Defect (except if such Defect is a Priority B Item, in which case it shall be included on the Punch List with respect to the applicable Block or Phase, as the case may be), and within five (5) Days after correcting such Defect provide Notice to Owner that such corrective measures have been completed. Any dispute regarding the existence or correction of any such Defect shall be resolved pursuant to Article 31.

15.    BLOCK, PHASE AND PV POWER PLANT SUBSTANTIAL COMPLETION

15.1    Block Completion.

15.1.1    Initial Block to Achieve Block Completion The following are the conditions precedent for the initial Block to achieve Block Substantial Completion:

(a)    such Block has achieved Mechanical Completion;
(b)    all Systems supporting the initial Block have been completed and accepted by Owner in accordance with Section 14.1;
(c)    the Interconnection Facilities and the PV Power Plant Interconnection Facilities have been completed to such a point so as to permit the Block Substantial Completion Tests for such Block to be conducted;
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(d)    the Block Substantial Completion Tests for such Block have been Successfully Run;
(e)    Owner has received all Contractor Deliverables required to be delivered in connection with the first Block Substantial Completion;
(f)    the Punch List for such Block has been prepared in accordance with Section 14.1.6;
(g)    Contractor shall have delivered the applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to such Block; and
(i)    Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of such Block in accordance with Applicable Law.
15.1.2    Each Successive Block to Achieve Block Completion. The following are the conditions precedent for each successive Block (after the initial Block) to achieve Block Completion:

(a)    such Block has achieved Mechanical Completion;
(b)    all Systems supporting such Block have been completed and accepted by Owner in accordance with Section 14.1;
(c)    the Interconnection Facilities and PV Power Plant Interconnection Facilities have been completed to such a point so as to permit the Block Substantial Completion Tests for such Block to be conducted and such Block to be operated in conjunction with all other Blocks that previously achieved Block Substantial Completion;
(d)    the Block Substantial Completion Tests for such Block have been Successfully Run;
(e)    Owner has received all Contractor Deliverables required to be delivered in connection with such Block Substantial Completion;
(f)    the Punch List for such Block has been prepared in accordance with Section 14.1.6;
(g)    Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of such Block in accordance with Applicable Law; and
(h)    Contractor shall have delivered all applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to such Block.
15.1.3    Block Substantial Completion Notice and Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to

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each Block as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of a Block Substantial Completion Certificate with respect to a Block and the occurrence of the Substantial Completion Date for such Block.

15.2    Phase Substantial Completion.

15.2.1    Phase Substantial Completion. The following are the conditions precedent for each Phase to achieve “Phase Substantial Completion”:

(a)    with respect to Phase 1, all of the conditions set forth in Section 15.1.1 have been satisfied (or have been waived by Owner), and, with respect to all Phases other than Phase 1, all of the conditions set forth in Section 15.1.2 have been satisfied (or have been waived by Owner) with respect to each of the Blocks comprising such Phase (including that all of the Blocks comprising such Phase have achieved Substantial Completion);

(b)    the Phase Substantial Completion Tests for such Phase have been Successfully Run and Minimum Performance Guarantee for such Phase has been achieved;
(c)    except with respect to Phase 1, Owner has received all Contractor Deliverables (if any) required to be delivered in connection with such Phase Substantial Completion Date;
(d)    all undisputed Delay Liquidated Damages with respect to such Phase then due and payable, if any, pursuant to Article 15 have been paid;
(e)    all undisputed Performance Liquidated Damages with respect to such Phase then due and payable, if any, pursuant to Article 15 have been paid; and
(f)    training of Operating Personnel in accordance with Section 3.15 of this Agreement in respect of Phase 1 is complete.
15.2.2    Phase Substantial Completion Notice and Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to each Phase as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of a Phase Substantial Completion Certificate with respect to a Phase and the occurrence of the Substantial Completion Date for such Phase.

15.3    PV Power Plant Substantial Completion.

15.3.1    Conditions to PV Power Plant Substantial Completion. The following are the conditions precedent for the PV Power Plant Substantial Completion:

(a)    each Phase has achieved Phase Substantial Completion;
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(b)    substation completion has been achieved and all of the Work comprising electrical works required to provide an integrated electrical system from the point of interconnection to each individual Block with the requirements of this Agreement, and Contractor has delivered to Owner copies of all test reports and electrical schematics relating thereto required under this Agreement;
(c)    all civil works constituting a part of the Work are complete and meet the requirements of this Agreement;
(d)    the PV Power Plant Substantial Completion Tests for the PV Power Plant Substantial Completion have been Successfully Run and the PV Power Plant has achieved the Minimum Performance Guarantee;
(e)    Owner has received all Contractor Deliverables (if any) required to be delivered in connection with the PV Power Plant Substantial Completion Date;
(f)    Contractor shall have delivered all applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to the PV Power Plant and all Work;
(g)    Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of the PV Power Plant in accordance with Applicable Law and otherwise required to be obtained by Contractor hereunder as of such time, such Contractor Acquired Permits are in full force and effect, and Contractor shall have completed all requirements under each such Contractor Acquired Permit required to be completed as of such time, subject to any final Punch List items; and
(h)    all training of Operating Personnel in accordance with Section 3.15 of this Agreement is complete.
15.3.2    PV Power Plant Substantial Completion Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to the PV Power Plant as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of the PV Power Plant Substantial Completion Certificate and the occurrence of the PV Power Plant Substantial Completion Date.

15.4    Notice of Substantial Completion. When Contractor believes that it has satisfied the provisions of Section 15.1, 15.2 or 15.3, as applicable, Contractor shall deliver to Owner a Notice of Substantial Completion with respect to the applicable Block or Phase or with respect to the PV Power Plant, as applicable. Owner shall, within ten (10) days after receipt of such Notice, issue the Substantial Completion Certificate with respect to such Block or Phase or with respect to the PV Power Plant, as applicable, or if Owner rejects such Contractor's Notice, respond in writing giving its reasons for such rejection and Contractor shall take the appropriate corrective action to achieve Substantial Completion for such Block, Phase or PV Power Plant, as applicable ***

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*** Upon completion of any corrective action, Contractor shall provide to Owner a new Notice of Substantial Completion for approval. This process shall be repeated on an iterative basis until Owner accepts (or is deemed to have accepted) such Notice of Substantial Completion, and issues the Substantial Completion Certificate with respect to such Block or Phase or with respect to the PV Power Plant, as applicable. The “Substantial Completion Date” for any applicable Block, Phase or PV Power Plant shall be the day after the date on which the last of the conditions of Section 15.1, 15.2 or 15.3, as applicable, was satisfied or, in the discretion of Owner, waived.

15.5    Final Completion . Final Completion of the PV Power Plant shall be deemed to have occurred only if the following conditions have been satisfied (or waived by Owner):

(a)    Substantial Completion for each Phase comprising the PV Power Plant shall have been achieved;
(b)    the PV Power Plant Functional Tests have been Successfully Run;
(c)    Contractor shall have completed all items on each Punch List (except such items that remain the subject of a Dispute) related to the Blocks and Phases, as applicable, comprising the PV Power Plant;
(d)    all Contractor's and Subcontractors' personnel (except any personnel that is to perform operational services pursuant to a separate operation and maintenance contract, if any) shall have left the Site, and all surplus materials, waste materials, rubbish and construction facilities other than those to which Owner holds title shall have been removed from the Site, and any permanent facilities used by Contractor and the Site shall have been restored to the same condition that such permanent facilities and the Site were in on the date Work commenced hereunder, ordinary wear and tear excepted;
(e)    Upon Final Payment, Contractor shall have delivered the applicable Waiver and Release Forms contemplated by Section 6.7; and
(f)    Owner shall have received all Contractor Deliverables in relation to the PV Power Plant as set forth on the Contractor Deliverables Table.
15.6    Notice of Final Completion. Contractor shall deliver to Owner a Notice of Final Completion stating that Contractor believes it has satisfied the provisions of Section 15.6. Within fifteen (15) days after receipt of the Notice of Final Completion, Owner shall issue the Final Completion Certificate, or if Owner rejects Contractor's Notice of Final Completion, respond in writing giving Owner's reasons for such rejection and Contractor shall promptly take appropriate corrective action to achieve Final Completion. *** Upon completion of such corrective action, Contractor shall provide a new Notice of Final Completion to Owner for approval. This process shall be repeated on an iterative basis until Owner accepts (or is deemed to have accepted) the Notice of Final Completion and issues the Final Completion Certificate. The “Final Completion Date” for the

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PV Power Plant shall be the day after the date on which the last of the conditions of Section 15.6 was satisfied or, in the discretion of Owner, waived.

15.7    Contractor's Access After Substantial Completion. Notwithstanding anything to the contrary in this Agreement, following Block Substantial Completion of a Block, Contractor shall have the right to access such Block and the Site of such Block, including the right to shut down and/or remove such Block from service, to the extent necessary to perform Work with respect to another portion of the applicable Phase or another Phase, including with respect to performing any applicable testing, as well as to the extent necessary to complete the Punch List items with respect to such Block. Contractor will use reasonable commercial efforts to accomplish the same in a manner that would minimize interference with commercial operation of the applicable Block and minimize the loss of electricity generation by such Block or any other portion of the PV Power Plant. Notwithstanding the foregoing, (x) should a shut-down or a reduction in the operation of a Block, a Phase or any other portion of the PV Power Plant be required to complete or correct any Punch List items, then such reduction or shut‑down shall be scheduled at the reasonable discretion of Owner, and Contractor shall complete such Work during such Owner scheduled period, provided, that any unreasonable delay by Owner in scheduling such reduction or shut-down shall be an Owner-Caused Delay, which shall entitle Contractor to a Change In Work pursuant to Section 8.4, and (y) Contractor acknowledges that Owner may schedule such reduction or shut-down at any time including off -peak hours, nights, weekends and holidays as may be necessary for Contractor to perform the Work. To the extent Contractor accesses a Block or the Site of such Block after Block Substantial Completion to perform Work as permitted under this Agreement, Contractor shall use due care in performing such Work and shall be responsible for any damage to such Block or Site of the Block resulting from Contractor, or any of its Subcontractor's, failure to use due care in performing the Work.

16.    LIQUIDATED DAMAGES; EARLY COMPLETION BONUS

16.1    Delay Liquidated Damages. Contractor agrees that if Phase Substantial Completion for any Phase is not achieved by the applicable date identified in this Section 16.1, then Contractor shall pay liquidated damages (“Delay Liquidated Damages”) to Owner:

(i)    with respect to failure (a) to achieve Phase 1 Substantial Completion by the Phase 1 Substantial Completion Guaranteed Date, ***;
(ii)    with respect to failure (a) to achieve Phase 2 Substantial Completion by the Phase 2 Substantial Completion Guaranteed Date, ***;
(iii)    with respect to failure (a) to achieve Phase 3 Substantial Completion by the Phase 3 Substantial Completion Guaranteed Date, ***;
(iv)    with respect to failure (a) to achieve Phase 4 Substantial Completion by the Phase 4 Substantial Completion Guaranteed Date, ***
(v)    ***;
provided, however, (a) that any amount Contractor is obligated to pay to Owner under this Section 16.1 shall be subject to the limitations set forth in Article 30, (b) that any amount
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Contractor is obligated to pay Owner under parts (a)(x) and (a)(y) of Subsections 16.1(i), 16.1(ii), and 16.1(iii), shall be subject to a maximum aggregate liability of $***, (c) that any amount Contractor is obligated to pay Owner under parts (a)(x) and (a)(y) of Subsection 16.1(iv) shall be subject to a maximum aggregate liability of $***, and (d) that any amount Contractor is obligated to pay Owner under Subsection 16.1(v) shall be subject to a maximum liability of $***.
16.2    Bonus Payment for Early Completion. Owner agrees that if Contractor achieves Phase Substantial Completion for a Phase prior to with respect to Phase 1, ***, with respect to Phase 2 or Phase 4, ***, with respect to Phase 3, ***, or achieves the PV Power Plant Substantial Completion prior to the PV Power Plant Substantial Completion Guaranteed Date, Contractor shall be entitled to a bonus payment (“Bonus Payment”) from Owner in the amount of $***.

16.3    Payment of Delay Liquidated Damages and Bonus Payment. The Parties agree that payment of Delay Liquidated Damages, as set forth in Section 16.1, and payment of a Bonus Payment as set forth in Section 16.2, shall be made, as applicable, at the time of Phase Substantial Completion for the applicable Phase.

16.4    Buy-Down Not Available for Minimum Performance Guarantee. If Contractor fails to achieve the Minimum Performance Guarantee for any Phase, Contractor shall continue seeking to achieve at least the Minimum Performance Guarantee for such Phase, and Contractor must continue to perform the Work until Contractor achieves Phase Substantial Completion for such Phase (it being understood that achievement of the Minimum Performance Guarantee is an express condition of Phase Substantial Completion).

16.5    Liquidated Damages for Failure to Satisfy Performance Guarantee. Contractor agrees that if, based on the results of the most recent Performance Acceptance Test that has been Successfully Run with respect to a Phase prior to its Phase Substantial Completion, such Phase (or the PV Power Plant) has satisfied the Minimum Performance Guarantee, but has not satisfied the Performance Guarantee, as calculated in accordance with Exhibit H-2, then, subject to Section 16.6, Contractor shall pay Performance Liquidated Damages to Owner, which shall be calculated as ***. Any amount Contractor is obligated to pay to Owner under this Section 16.5 shall be subject to the limitations set forth in Article 30, and shall be due and payable on or after the applicable Phase Substantial Completion Date (or, as applicable, PV Power Plant Substantial Completion) but in any event within 30 days after Owner's invoice therefor. An example calculation of Performance Liquidated Damages is set forth in Section 1 of Exhibit O.

16.6    Contractor Election. Actions During Cure Period if Minimum Performance Guarantee is Satisfied, but not Performance Guarantee.

16.6.1    Payment of Performance Liquidated Damages; Cure Period; Buy-Down. If, based on the results of the most recent Performance Acceptance Test that has been Successfully Run with respect to a Phase prior to its Phase Substantial Completion, such Phase (or in the case of the last Phase, the PV Power Plant) has

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satisfied the Minimum Performance Guarantee, but has not satisfied the Performance Guarantee, Contractor, at its option, shall elect to either:

(a)    pay any applicable Performance Liquidated Damages as may be due and payable with respect to such Phase (or the PV Power Plant) and have no further obligation to try to achieve the applicable Performance Guarantee; or
(b)    continue to attempt to satisfy the applicable Performance Guarantee until the expiration of the applicable Cure Period.
Contractor shall exercise either option provided in this Section 16.6.1 by delivery of Notice to Owner not later than ten (10) days after the Phase Substantial Completion Date or PV Power Plant Substantial Completion Date, as applicable. Notwithstanding Contractor's election of option (b) of this Section 16.6.1, upon the expiration of the applicable Cure Period, if the applicable Performance Guarantee has not been achieved, Contractor shall be deemed to have elected to have no further obligation to try to achieve the applicable Performance Guarantee.
16.6.2    Remedial Plans. If Contractor elects to attempt to satisfy the applicable Performance Guarantee as provided in Section 16.6.1(b) after the Phase Substantial Completion Date or PV Power Plant Substantial Completion Date, as applicable, Contractor shall submit a Remedial Plan to Owner, which shall specify the corrective actions Contractor will take and the commencement date of such corrective action, for Owner's approval, which shall not be unreasonably withheld. The corrective actions described in each Remedial Plan that Contractor proposes to undertake with respect to the Work shall be designed and intended to cause such Phase or the PV Power Plant, as applicable, to satisfy the applicable Performance Guarantee with a reasonable probability of success and may not involve a material risk of damaging or diminishing the performance of any of the Work. The projected completion date for such corrective action must fall within the applicable Cure Period.

16.6.3    Prosecution of Remedial Plan. If Contractor elects to attempt to achieve the applicable Performance Guarantee and proceeds with a Remedial Plan, Contractor shall promptly and diligently pursue completion of such Remedial Plan.

16.6.4    Additional Remedial Plans. If Contractor is unable to satisfy the Performance Guarantee after completing the initial Remedial Plan, Contractor may (i) elect to deliver a new Remedial Plan to Owner within ten (10) days after completion of such initial Remedial Plan or (ii) elect to have no further obligation to try to achieve the Performance Guarantee pursuant to Section 16.6.1(a), provided, however, that such new Remedial Plan shall be deemed null and void if the applicable Cure Period has already expired or will otherwise expire during the period covered thereby.

16.6.5    Access During Cure Period. Notwithstanding anything to the contrary in Article 19 or Article 23, during the Cure Period and upon approval of a Remedial Plan, Owner shall provide Contractor with reasonable access to applicable portions of the PV Power Plant at which point Contractor shall assume the care,

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custody, and control of those parts of the PV Power Plant affected by Contractor's Work pursuant to the applicable Remedial Plan. Contractor shall be granted such access, subject to Section 15.7, for purposes of achieving the Performance Guarantee and for the period as set forth in the applicable Remedial Plan, to:

(a)    perform corrective actions pursuant to the applicable Remedial Plan; and
(b)    perform the applicable Performance Acceptance Tests, as provided in such Remedial Plan.
16.6.6    Operations During Cure Period. During the Cure Period, Owner shall have the right to operate the applicable Phase and/or the PV Power Plant, including the right to maximize the economic benefits of the Project. Any failure by Owner to provide Contractor with access to the applicable portion of the PV Power Plant as set forth in this Section 16.6.6 shall not be considered a breach of any covenant, condition, representation or warranty of Owner, and shall not be construed as an Owner Event of Default. Contractor's only remedy for a failure by Owner to provide Contractor with access to the applicable Phase and/or the PV Power Plant as set forth in this Section 16.6.6 shall be an equitable extension of the Cure Period until such reasonable access is provided. Notwithstanding the foregoing, Contractor shall be entitled to reasonable access to the applicable Phase and/or the PV Power Plant between sunset and sunrise.

16.7    Extension of Cure Period. Notwithstanding anything to the contrary herein, if Contractor has been unable to cause the applicable Phase or the PV Power Plant to meet the Performance Guarantee on or prior to the expiration of the initial Cure Period, Contractor may submit to Owner for approval a request for extension of such Cure Period and a revised Remedial Plan setting forth in specificity and detail the corrective actions which Contractor proposes to undertake to enable such Phase to achieve the Performance Guarantee during an extended Cure Period pursuant to this Section 16.7. Upon Owner's approval of such revised Remedial Plan, such Cure Period shall be extended for the period of time set forth in the Remedial Plan.

16.8    Sole Remedy; Liquidated Damages Not a Penalty. Without limiting Owner's remedies hereunder with respect to Contractor's unexcused failure to achieve Substantial Completion of a Phase or the PV Power Plant or failure to achieve any Performance Guarantee, the amounts payable under Section 16.1, Section 16.4, or Section 16.5 in each case as limited by Article 30, and the other remedies provided for in this Article 16, shall be the sole and exclusive remedies of Owner for delays in achieving Substantial Completion by the applicable Substantial Completion Guaranteed Date, or for failure to achieve the Performance Guarantee with respect to any Phase or the PV Power Plant as a whole. The Parties agree that Owner's actual damages in the event of such delays or failures would be extremely difficult or impracticable to determine. After negotiation, the Parties have agreed that the Delay Liquidated Damages, PV Plant Substantial Completion Delay Liquidated Damages, and the Performance Liquidated Damages are in the nature of liquidated damages and are a reasonable and appropriate measure of the damages that Owner would incur as a result of such delays or failures, and do not represent a penalty.

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16.9    Enforceability. The Parties explicitly agree and intend that the provisions of this Article 16 shall be fully enforceable by any court exercising jurisdiction over any dispute between the Parties arising under this Agreement. Each Party hereby irrevocably waives any defenses available under law or equity relating to the enforceability of the liquidated damages provisions set forth in this Article 16 on the grounds that such liquidated damages provisions should not be enforced as constituting a penalty or a forfeiture.

16.10    Achievement of Performance Guarantee; Reimbursement of Liquidated Damages.

16.10.1Reimbursement of Performance Liquidated Damages. Upon completion of any Performance Acceptance Test with respect to a Phase or with respect to the PV Power Plant in accordance with this Agreement, the Parties shall meet and review the results of such Performance Acceptance Test. Based on the results of such Performance Acceptance Test that has been Successfully Run prior to the expiration of the Cure Period (the “Final Performance Acceptance Test”), the Parties shall apply the following:

(a)    Performance Guarantee Satisfied. If such Final Performance Acceptance Test indicates that the Performance Guarantee with respect to all of Phases of the Project through and including such Phase, or with respect to the PV Power Plant as a whole, as applicable, has been achieved, then within ten (10) Business Days thereafter, Owner shall refund to Contractor:
(i)    the amount of any Performance Liquidated Damages previously paid by Contractor pursuant to Section 16.5 or offset by Owner, minus
(ii)    as the sole compensation to Owner for its lost revenue during the Cure Period) an amount equal to the following: ***. For purposes of this Section 16.10(a), the “Cure Period Deficiency” is calculated as the Guaranteed Capacity less the Tested Capacity demonstrated by the Performance Acceptance Test used to achieve, as applicable, Phase Substantial Completion or PV Plant Substantial Completion, expressed in kW. An example calculation of the foregoing is set forth in Section 2.1 of Exhibit O.
(b)    Performance Guarantee Not Satisfied. If such Final Performance Acceptance Test indicates that the Performance Guarantee with respect to all of Phases of the Project through and including such Phase, or with respect to the PV Power Plant as a whole, as applicable, has not been satisfied, but the amount paid by Contractor (or offset by Owner) as Performance Liquidated Damages pursuant to Section 16.5 exceeds the amount that Contractor would have paid based on the results of such Final Performance Acceptance Test, then within ten (10) Business Days after an invoice is delivered to Owner, Owner shall refund to Contractor the amount of any such excess Performance Liquidated Damages paid by Contractor pursuant to Section 16.5 or offset by Owner (i.e., the difference between the amount of Performance Liquidated Damages paid under Section 16.5 and those that would have been payable if the results of such Final Performance Acceptance Test had been used to achieve the applicable Phase Substantial
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Completion for prior Phase(s) or PV Power Plant Substantial Completion, as applicable) minus (as the sole compensation to Owner for its lost revenue during the Cure Period) an amount equal to the following: ***. An example calculation of the foregoing is set forth in Section 2.2 of Exhibit O.
17.    CHANGES IN THE WORK

17.1    Change In Work. A Change In Work shall result from one of the following:

(a)    the addition to, modification of, or deletion from the Work (performed or yet to be performed) during the performance of the Work mutually agreed to by the Parties in accordance with Sections 17.2, 17.4, 17.5 and 17.6;
(b)    the occurrence of a Force Majeure Event or an Excusable Event (as and only to the extent permitted by Section 8.4);
(c)    an Owner Directive in accordance with Section 17.7;
(d)    a failure by Owner to provide access as provided in Section 15.8; or
(e)    any other event or circumstance specifically identified in this Agreement as necessitating a Change In Work or entitling either Party to seek a Change In Work.
17.2    By Owner. Subject to Section 17.4, Owner shall have the right to make changes in the Work, within the general scope thereof and consistent with this Agreement, whether such changes are modifications, accelerations, alterations, additions or deletions. All such changes shall be made in accordance with this Article 17, shall be documented in accordance with Sections 17.4 through 17.8 and shall be considered, for all purposes of this Agreement, as part of the Work.

17.3    Adjustment to CPM Schedule Due to Force Majeure Events or Excusable Events. If a Force Majeure Event or an Excusable Event occurs, the CPM Schedule, the Guaranteed Substantial Completion Dates, the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), any other applicable Milestones and the Contract Price shall be modified as and to the extent provided in Section 8.4, as the case may be, and as set forth in the Change In Work Form accepted by Owner.

17.4    Preparation of Change In Work Form.

17.4.1    Due to Owner Initiated Change In Work. If Owner provides Notice to Contractor that Owner is proposing a Change in accordance with Section 17.2, Contractor shall, as soon as practicable, prepare a Change in Work Form (as set forth in Exhibit S), subject to the remaining provisions of this Section 17.4.1, which shall include a detailed proposal for such Change In Work, together with a detailed explanation and basis thereof, and any increase or decrease in the cost required to complete the Work (priced in accordance with Exhibit S-4).

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17.4.2    Due to Excusable Event or a Force Majeure Event. If a Force Majeure Event or an Excusable Event occurs for which Contractor is entitled to an adjustment to the CPM Schedule and/or the Contract Price pursuant to Section 8.4.1, then Contractor shall, as soon as practicable, prepare and submit to Owner in accordance with Section 8.4.2 a proposed Change In Work Form, which shall include (a) any projected change in the Contract Price occasioned by such Change In Work and (b) the effect such Change In Work could be expected to have on the CPM Schedule or any other schedule events or dates for performance by Contractor hereunder, in each case all as and to the extent provided in Section 8.4.1 with respect to such Force Majeure Event or Excusable Event and as set forth in the Change In Work Form.

17.5    Execution of Change In Work Form. If Contractor and Owner reach agreement on all matters that constitute the Change In Work, then the Parties shall execute a Change In Work Form as set forth in Exhibit S-1 (at no cost to Owner for preparation of the form) and Contractor shall perform the Work, as set forth in such Change In Work Form. If the Parties agree that a Change In Work has occurred pursuant to Section 17.1 but cannot agree on the appropriate adjustment to the Contract Price, Contractor shall, unless otherwise agreed, proceed with such Change in Work and be reimbursed on a time and materials basis at Contractor's then applicable personnel and labor rates as described in Exhibit S (or at the rates of the applicable Subcontractors). If the Parties dispute that a Change in Work has occurred, or dispute the appropriate adjustment to the CPM Schedule associated with such Change in Work, those disputes shall be resolved per Article 31.

17.6    No Obligation or Payment Without Executed Change In Work Form. Contractor shall not be obligated to undertake a Change In Work until the Parties have executed a Change In Work Form, except as set forth in Sections 17.5 and 17.7, or if immediate action is reasonably required to address an emergency which endangers human health or property. In the absence of an executed Change In Work Form, except as set forth in Section 17.7 or in the event of such emergency, if Contractor undertakes any changes in the Work such changes shall be made at Contractor's risk and expense and Contractor shall not be entitled to any schedule modification or payment hereunder for undertaking such changes (subject to Contractor's right to a Change In Work in the circumstances specified in Sections 8.4.1 and 8.4.2).

17.7    Owner Directives. If Contractor and Owner are unable to agree on whether a Change In Work has occurred or on the matters described in a Change In Work Form issued as set forth in Exhibit S-2 or S-3, as applicable (other than the appropriate adjustment to the Contract Price which shall be addressed as set forth in Section 17.5), regardless of whether such Change In Work Form was initiated by Contractor or by Owner, Contractor shall perform the Work as Owner so directs in writing (an “Owner Directive”), provided that such Owner Directive would not adversely and materially affect Contractor's ability to meet the Performance Guarantees or its Warranty obligations hereunder or otherwise to perform the Work in accordance with this Agreement, and Contractor shall be reimbursed for such Change In Work pursuant to an Owner Directive on a time and materials basis at Contractor's then applicable personnel and labor rates as described in Exhibit S (or at the rates of the applicable Subcontractors). If an Owner Directive causes Contractor to depart from the CPM Schedule,

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then the Parties shall execute a Change of Work Form to record the change in the CPM Schedule and any affected Schedule Milestones.

17.8    Disputed Changes In Work. Subject to Section 17.5, any disputes regarding a Change In Work Form or whether a Change In Work has occurred or that are otherwise related to a Change In Work shall be subject to the dispute resolution provisions of Article 31.

17.9    Change for Contractor's Convenience. Contractor shall have the right, at its own cost and expense, to take any action that is generally consistent with this Agreement and that Contractor, in good faith, determines to be reasonably necessary to meet the requirements of this Agreement. No Change In Work shall be deemed to have occurred in connection with any such change or action subject to the following sentence. If such action involves: (a) substitution of material PV Power Plant Hardware, (b) the substitution or replacement of a Major Subcontractor (other than if such substitute or replacement Subcontractor is a Specified Subcontractor or Specified Supplier identified on Exhibit L), or (c) a material deletion from, or material modification of, the Work, as described in this Agreement, Contractor shall obtain Owner's written approval prior to undertaking such action.

18.    WARRANTIES CONCERNING THE WORK

18.1    Defect *** Warranties. With respect to each Block of the PV Power Plant, Contractor warrants to Owner:

18.1.1    Defect Warranty. That those Systems that comprise a Block, shall, upon Block Substantial Completion: (a) be free from Defects in materials, construction, fabrication and workmanship; (b) be new and unused; and (c) be of good quality and in good condition (collectively, the “Defect Warranty”).

18.1.2    ***.

18.1.3    PV Module Warranty. Contractor shall issue (or shall cause an Affiliate thereof to issue) warranties for the PV modules in accordance with the Module Warranty Terms and Conditions attached as Exhibit R. Notwithstanding anything in Exhibit R to the contrary, the warranties for the PV modules shall be deemed to commence ***.

18.2    Warranty Periods.

18.2.1    Defect Warranty Period. Contractor shall have no liability under the Defect Warranty for a particular Block from and after the end of the *** period commencing on the applicable Block Substantial Completion Date (such period, the “Defect Warranty Period”), provided, however, that:

(a)    the warranty period for any item or part required to be re-performed, repaired, corrected or replaced following discovery of a Defect during the applicable Defect Warranty Period shall continue until the end of the later of (a) the expiration of such Defect Warranty Period and (b) *** from the date of completion of such repair or replacement; and
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(b)    ***
18.2.2    ***.

18.2.3    Warranty Claims. With respect to warranty claims under Section 18.2.1 or Section 18.2.2, as applicable, Contractor shall be liable to Owner in connection with such Defects prior to the end of the applicable Warranty Period so long as Owner complies with its Notice obligations under this Article 18.

18.3    Exclusions.
18.3.1    Defect Warranty ***. The Defect Warranty *** shall not apply to:

(a)    ***
(b)    ***
18.3.2    Operating Personnel. Notwithstanding the provisions of Section 18.3.1(b), prior to the training of the Operating Personnel by Contractor pursuant to Section 3.15, any adverse stress or damage to the PV Power Plant caused by Operating Personnel while under the direction of Contractor shall be the responsibility of Contractor, except to the extent such Operating Personnel's acts or omissions constitute negligence, gross negligence, willful misconduct or a failure to comply with Contractor's instructions.

18.4    Enforcement by Owner; Subcontractor Warranties.

18.4.1    Supplier Warranties. Contractor shall obtain standard defect warranties from Subcontractors of the PV Power Plant Hardware, including the PV modules, supplied under this Agreement to the extent such warranties are available on commercially reasonable terms.

18.4.2    ***

18.4.3    Assignment of Warranties by Contractor. If this Agreement has been terminated in accordance with Article 20, or otherwise at Final Completion, Contractor shall assign all Subcontractor warranties to Owner, subject to the terms and conditions of such warranties; provided, however, that, notwithstanding such assignment, Contractor shall be entitled to enforce each such warranty through the end of the applicable Warranty Period. Contractor shall cause Owner to be an express third-party beneficiary of all such representations, warranties, guarantees and obligations of the Suppliers of all PV modules and other PV Power Plant Hardware.

18.5    Correction of Defects.

18.5.1    Notice of Warranty Claim. ***

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18.5.2    Upon Contractor's Request. ***

18.5.3    Failure of Contractor to Perform Warranty Work. ***

18.6    Limitations On Warranties. ***

19.    TITLE

19.1    Title; No Encumbrances. Except as otherwise provided in any Material and Equipment Supply Agreement executed pursuant to Section 9.6, to the extent Owner's payments to Contractor are fully made in accordance with this Agreement, subject to Section 19.2, Contractor warrants that Owner shall have good title, free and clear of all liens, claims, charges, security interests and encumbrances whatsoever (other than those created by or attributable to Owner, any third-party or that result from Owner's failure to pay Owner Taxes hereunder) to all Work, PV Power Plant Hardware and other items furnished by Contractor or any of its Subcontractors that become part of the PV Power Plant or that are to be used for the operation, maintenance or repair thereof in accordance with this Agreement.

19.2    Transfer. Except as otherwise provided in any Material and Equipment Supply Agreement executed pursuant to Section 9.6, title to each Block shall transfer to Owner upon the Block Substantial Completion for such Block, subject to Section 19.1. Upon such transfer of title Owner shall assume and take care, custody and control of such Block in accordance with Section 23.1; provided that nothing in this Section 19.2, in Section 23.1 or elsewhere in this Agreement shall reduce, limit or otherwise affect Contractor's rights or Owner's obligations under Sections 15.7 or 16.6.5.

19.3    Custody During Performance. The transfer of title to a Block shall in no way affect Owner's rights or obligations as set forth in any other provision of this Agreement. Subject to Section 23.1, Contractor shall have care, custody, and control and risk of loss of all PV Power Plant Hardware and other items with respect to a Block and exercise due care with respect thereto until the earlier of the Block Substantial Completion Date of such Block or the date of termination of this Agreement.

20.    DEFAULTS AND REMEDIES

20.1    Contractor Events of Default. Contractor shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, a “Contractor Event of Default”):

(a)    Contractor *** becomes insolvent, generally does not pay its debts as they become due, admits in writing its inability to pay its debts, makes a general assignment for the benefit of creditors, or Contractor *** commences any case, proceeding or other action seeking reorganization or receivership, or adopts an arrangement with creditors, under any bankruptcy, insolvency, reorganization or similar law of the United States or any state thereof for the relief of creditors or affecting the rights or remedies of creditors generally;
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(b)    insolvency, receivership, reorganization, or bankruptcy or similar proceedings are commenced against Contractor *** and such proceeding shall remain undismissed or unstayed for a period of sixty (60) days;
(c)    any material representation or warranty made by Contractor herein was materially false or misleading when made and if capable of remedy, Contractor fails to remedy such materially false or misleading representation or warranty within thirty (30) days after Contractor receives a Notice from Owner with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Contractor receives a Notice from Owner with respect thereto;
(d)    Contractor assigns or transfers this Agreement or any right or interest herein except in accordance with Article 26;
(e)    Contractor fails to maintain any insurance coverages required of it in accordance with Article 22 and Contractor fails to remedy such breach within ten (10) days after the earlier of the date on which Contractor first becomes aware of or receives a Notice from Owner with respect thereto, except such ten (10) day limit shall be extended if: (i) curing such failure reasonably requires more than ten (10) days; and (ii) Contractor commences such cure within such ten (10) day period and diligently prosecutes such cure;
(f)    Contractor fails to perform any provision of this Agreement providing for the payment of money to Owner, except for any disputed amounts, and such failure continues for twenty (20) days after Contractor has received a Notice from Owner, or Contractor fails to perform any material provision of this Agreement not otherwise addressed in this Section 20.1, and such failure continues for thirty (30) days, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Contractor first receives a Notice from Owner with respect thereto;
(g)    the Substantial Completion Date for any Phase or the PV Power Plant has not occurred by the *** day after the applicable Phase Substantial Completion Guaranteed Date or the PV Power Plant Substantial Completion Guaranteed Date, as such date may be extended pursuant to the provisions of this Agreement; or
(h)    ***
20.2    Owner's Rights and Remedies. If a Contractor Event of Default occurs, subject to Article 30, Owner shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Owner hereunder, and Contractor shall have the following obligations:

(a)    Owner may terminate this Agreement by giving Notice of such termination to Contractor;
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(b)    Owner may proceed against the *** or any security provided by Contractor to Owner in support of Contractor's performance of its obligations under this Agreement;
(c)    if Owner terminates this Agreement in accordance with the provisions hereof, Contractor shall withdraw from the Site, shall assign (to the extent such subcontract may be assigned) to Owner (without recourse to Contractor) such of Contractor's subcontracts as Owner may request, and shall license, in the manner provided herein, to Owner all Contract Intellectual Property of Contractor related to the Work reasonably necessary to permit Owner to complete or cause the completion of the Work, and in connection therewith Contractor authorizes Owner and its respective agents to use such information in completing the Work, shall remove such materials, equipment, tools and instruments used by and any debris or waste materials generated by Contractor in the performance of the Work as Owner may direct, and Owner may take possession of any or all Contractor Deliverables necessary for completion of the Work (whether or not such Contractor Deliverables are complete);
(d)    Owner may seek equitable relief to preserve the rights of Owner during the pendency of any dispute or to enforce its rights under this Agreement;
(e)    Owner may pursue the dispute resolution procedures set forth in Article 31 to enforce the provisions of this Agreement;
(f)    Owner may make such payments or perform such obligations as are reasonably required to cure any Contractor Event of Default and either offset the cost of such payment or performance against payments otherwise due to Contractor under this Agreement or Contractor shall be otherwise liable to pay and reimburse such amounts to Owner;
(g)    if Owner terminates this Agreement, Owner may seek damages as provided in Section 21.1; and
(h)    Owner may suspend the Work by giving Notice of such suspension to Contractor pursuant to Section 21.4.2.
20.3    Owner Event of Default. Owner shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, an “Owner Event of Default”):

(a)    Owner *** becomes insolvent, generally does not pay its debts as they become due, admits in writing its inability to pay its debts, makes a general assignment for the benefit of creditors, or Owner *** commences any case, proceeding or other action seeking reorganization or receivership, or adopts an arrangement with creditors, under any bankruptcy, insolvency, reorganization or similar law of the United States or any state thereof for the relief of creditors or affecting the rights or remedies of creditors generally;
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(b)    insolvency, receivership, reorganization, or bankruptcy or similar proceedings are commenced against Owner *** and such proceeding shall remain undismissed or unstayed for a period of sixty (60) days;
(c)    any material representation or warranty made by Owner herein was false or misleading when made and if capable of remedy, Owner fails to remedy such false or misleading representation or warranty within thirty (30) days after Owner receives a Notice from Contractor with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Owner commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Owner receives a Notice from Contractor with respect thereto;
(d)    Owner assigns or transfers this Agreement or any right or interest herein, except in accordance with Article 26;
(e)    Owner fails to perform any provision of this Agreement requiring Owner to pay undisputed sums to Contractor and such failure continues for ten (10) days after Owner has received a Notice from Contractor with respect thereto;
(f)    Owner fails to perform any material provision of this Agreement not otherwise addressed in this Section 20.3, and such failure continues for (30) days, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Owner commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Owner first receives a Notice from Contractor with respect thereto;
(g)    ***; or
(h)    Owner fails to maintain any insurance coverages required of it in accordance with Article 22 and Owner fails to remedy such breach within thirty (30) days after the date on which Owner first receives a Notice from Contractor with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure.
20.4    Contractor's Rights and Remedies. If an Owner Event of Default occurs, subject to Article 30, Contractor shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Contractor hereunder:

(a)    to terminate this Agreement upon providing Notice of such termination to Owner (in which event Contractor shall be compensated in the manner described in Section 20.5);
(b)    to proceed against the *** or any other security provided by Owner to Contractor in support Owner's performance of its obligations under this Agreement;
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(c)    to seek equitable relief to preserve the rights of Contractor during the pendency of any dispute or to enforce its rights under this Agreement;
(d)    to pursue the dispute resolution procedures set forth in Article 31 to enforce the provisions of this Agreement;
(e)    Contractor may proceed against *** or any security provided by Owner to Contractor in support Owner's performance of its obligations under this Agreement; and
(f)    subject (in the case of an Owner Default that is reasonably Disputed by Owner) to Section 31.6, Contractor may suspend the Work by giving Notice of such suspension to Owner; provided that such Notice of suspension may be given by Contractor either concurrently or at any time after the Notice described in Section 20.3(e).
20.5    Termination Payment. In addition to the remedies provided in Section 20.3, if Contractor terminates this Agreement due to an Owner Event of Default, then as compensation through the effective date of such termination:

(a)    Owner shall pay to Contractor an amount ***; and
(b)    Owner shall pay to Contractor ***;
The amounts payable above shall be grossed up to the extent the Owner is required to make any withholdings under Applicable Law in respect of any of such amounts, such that the amount received by Contractor shall be no less than Contractor would receive in accordance with the foregoing if no such withholding were required. Contractor shall provide reasonable evidence for the costs associated with this Section 20.4 and take reasonable steps to mitigate such costs, losses and damages to the extent reasonably practicable following such termination.
21.    TERMINATION OR SUSPENSION

21.1    Termination and Damages for Contractor Event of Default. In the event of a Contractor Event of Default, Owner may terminate this Agreement by delivery of Notice to Contractor, to be effective upon the receipt of such Notice by Contractor or upon such other subsequent termination date specifically identified by Owner therein. Subject to Article 30, Contractor shall be liable to Owner for reasonable and direct costs incurred by Owner in completing the Work, including costs of engaging a replacement contractor or for obtaining additional professional services required as a consequence of such Contractor Event of Default, provided such costs exceed the unpaid balance of the Contract Price (and, to the extent applicable, Contractor shall remain liable for the satisfaction of all liabilities incurred prior to Owner's termination, including Contractor's indemnification obligations to the extent provided in Article 24, and payment of all accrued Delay Liquidated Damages, PV Power Plant Substantial Completion Liquidated Damages and Performance Liquidated Damages). Upon determination of the total cost of the Work, Owner shall Notify Contractor in writing of the amount, if any, that Contractor shall pay Owner, and such amount shall be paid within thirty (30) days after receipt of such Notice. If it is determined under Article 31 that there was not a Contractor Event of Default or that Owner was not entitled to the remedy against Contractor

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provided above, Owner will be liable to Contractor for a termination payment calculated in accordance with Section 20.5.

21.2    Owner's Right to Elect to Assume Obligations with Subcontractors. Upon a termination of this Agreement by Owner pursuant to Section 21.1, Owner shall have the right, at its option, to assume any subcontract or purchase order that Contractor has entered into with a Subcontractor in connection with the Work, including without limitation, the subcontracts for the supply of PV Panels. If Owner elects to assume any subcontract or purchase order as described in this Section 21.2, then (a) Contractor shall execute all assignments or other reasonable documents and take all other reasonable steps requested by Owner which may be required to vest in Owner all rights, set-offs, benefits and titles necessary to effect such assumption by Owner; and (b) Owner shall simultaneously agree to indemnify Contractor against liabilities thereafter arising under the assumed subcontract or purchase order. Contractor shall use commercially reasonable efforts to include in each of its subcontracts or purchase orders, Subcontractor's agreement to permit its subcontract or purchase order to be assumed by Owner upon termination of this Agreement.

21.3    Contractor Conduct. Upon receipt of Notice from Owner of termination pursuant to Section 21.1, Contractor shall: (a) cease operations as directed by Owner in the Notice; (b) take action necessary, or that Owner may reasonably direct, for the protection and preservation of the Work; and (c) except for Work directed to be performed prior to the effective date of termination stated in such Notice, or except as expressly requested by Owner in writing or under Section 21.2, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders with respect to the Work or the PV Power Plant.

21.4    Suspension for Cause.

21.4.1    Stop Work; Suspension for Cause. Owner may (i) order Contractor to immediately stop performance of that portion of the Work at the Site that would reasonably be expected to cause an imminent danger to life or damage to property, or (ii) by giving thirty (30) days' advance Notice thereof to Contractor, suspend performance of the Work due to a Contractor Event of Default (each, a “Suspension for Cause”). As a condition to the effectiveness of such Notice, Owner shall provide Contractor a reasonable explanation of the grounds for such Suspension for Cause as well as Owner's reasonable instructions to remedy the same. If the Work is suspended as a result of a valid Suspension for Cause, then Contractor shall not be entitled to any schedule extensions or change in the cost of the performance of the Work for a Suspension for Cause resulting from a Contractor Event of Default. Owner's right to suspend performance of the Work under this Section 21.4.1 shall be without prejudice to any other right or remedy Owner may have under this Agreement.

21.4.2    Resumption of Work. In the case of a Suspension for Cause pursuant to Section 21.4.1, once the cause of such Suspension for Cause has been resolved by Contractor in accordance with the instructions of Owner in its Notice of Suspension for Cause as provided above or by other reasonable means identified by Contractor, all as determined by Owner in its reasonable discretion, and if this Agreement is still in effect, then if Owner does not re-order the resumption of the

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Work after five (5) days Notice, any further delay to the resumption of the Work shall be considered an Owner-Caused Delay. In the event that any such Suspension for Cause is subsequently determined not to have been properly issued in accordance with the provisions of this Section 21.4.1, then Contractor shall be entitled to a Change In Work in accordance with Section 17.3 and such other relief as provided in Section 21.4.3 to reflect any additional increased costs of Contractor resulting from any such suspension, as reasonably demonstrated by Contractor to Owner.

21.4.3    Extension of Time and Compensation Rights. If the last sentence of Section 21.4.2 applies, then:

(a)    the CPM Schedule (including any applicable Substantial Completion Guaranteed Dates) shall be extended by a period no less than the suspension period, plus a reasonable period for demobilization and remobilization, as mutually agreed upon by Contractor and Owner;

(b)    Owner shall pay Contractor for those reasonable costs and cost increases incurred during the applicable suspension of the Work that are documented by Contractor to the reasonable satisfaction of Owner, to the extent directly attributable to the suspension:
(i)    for the purpose of safeguarding or storing the Work and the PV Power Plant Hardware at the point of fabrication, in transit, or at the Site;
(ii)    for personnel, Subcontractors or PV Power Plant Hardware, the payments for which are continued during such suspension;
(iii)    for reasonable costs of demobilization and remobilization of Contractor and its Subcontractors, including suspension costs set forth in any subcontract, purchase order or other agreement;
(iv)    for rescheduling the Work (including any increased labor or materials costs and including penalties or additional payments to Subcontractors for the same), plus (A) *** of such costs as an allowance for profit and home office overhead and (B) *** of such costs as an allowance for contingency.
21.5    Claims for Payment. All claims by Contractor for compensation or extension of time under Section 21.4.4 must be made within *** days after either (i) the Notice from the Owner that the Agreement has been terminated or (ii) such suspension has ended.

21.6    Release of Punch List Holdback upon Termination. In the event this Agreement is terminated prior to completion of the Work for any reason other than a Contractor Event of Default, Owner shall release from the Punch List Holdback an amount equal to the sum of (i) all amounts invoiced by Contactor under Section 6.6.3 that remain unpaid, plus (ii) with respect to all Work performed to complete items on any applicable Punch List that have been completed but that have not been invoiced, all Punch List Amounts relating to such completed items, plus (iii) with respect to all Work performed toward the completion of items on any applicable Punch Lists which have been partially completed, an amount equal to the value of

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such Work, calculated based on a time and materials basis at Contractor's then applicable personnel and labor rates (or at the rates of the applicable Subcontractors) plus *** of such value for home office overhead and profit, provided, that such amount shall not exceed such Punch List Amount for such partially completed items. An example calculation of the release of the Punch List Holdback is set forth in Exhibit N.

22.    INSURANCE

21.1    General.

22.1.1    Contractor Insurance. Contractor shall procure at its own expense and maintain in full force and effect as required under this Agreement, with responsible insurance companies authorized to do business in the state where the Work is performed, the types and limits of insurance as set forth in Section 22.2.  Such insurances may be procured in whole or in part under Contractor's own insurance program.

22.1.2    Owner-Provided Insurance. Owner shall procure at its own expense and maintain in full force and effect as required under this Agreement, with responsible insurance companies authorized to do business in the state where the Work is performed, the types and limits of insurance as set forth in Section 22.3.

22.1.3    Insurer Qualifications. The insurance companies referred to in this Article 22 shall have an A.M. Best Insurance financial strength rating of A- or better, and a financial size of IX or greater, or shall be of recognized responsibility satisfactory to the Parties.

22.1.4    Insurance Terms. Capitalized terms used in this Article 22 and not otherwise defined in this Agreement shall have the meanings generally ascribed to them in the commercial insurance industry.

22.1.5    Additional Insurance. Each Party, at its own cost, may purchase any additional insurance it believes necessary to protect its interests.

22.2    Contractor's Insurance (General Coverages). Contractor shall procure and maintain in full force and effect, the insurance policies specified in this Article 22.

22.2.1    Workers' Compensation and Employer's Liability Insurance. Contractor shall maintain workers' compensation insurance and such other forms of insurance which Contractor is required to maintain in order to comply with statutory limits under workers' compensation laws of any applicable jurisdiction in the United States (and any other location in which the Work is to be performed) including USL&H coverage (if any exposure exists), where applicable, and employer's liability (including occupational disease) coverage with limits of *** for disease, and *** for each employee, which shall cover all of Contractor's employees, whether full-time, part-time, leased, temporary or casual, who are engaged in the Work.

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22.2.2    Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance written on an occurrence basis and with a combined single limit of *** per occurrence and *** annual aggregate.  Such insurance shall include coverage for products/completed operations (for three years beyond Final Completion), broad form/blanket contractual liability for written contracts, broad form property damage, bodily injury (including death), and personal injury liability, independent contractor liability, mobile equipment, cross liabilities, and hostile fire liability.  The policy shall contain no exclusions for X.C.&U., rigging, lifting, and boom overload, or operations within 50 feet of a railroad.

22.2.3    Automobile Liability Insurance. Contractor shall maintain automobile liability insurance (including coverage for owned, non-owned and hired automobiles) covering vehicles used by Contractor in connection with the Work in an amount of *** combined single limit per occurrence for bodily injury and property damage.  Contractor's automobile liability insurance coverage shall contain appropriate no-fault insurance provisions or other endorsements in accordance with Applicable Laws.

22.2.4    Umbrella or Excess Liability Insurance. Contractor shall maintain umbrella/excess insurance on an occurrence basis covering claims in excess of the underlying insurance described in Sections 22.2.1 (employer's liability only), 22.2.2 and 22.2.3, in the amount of *** per occurrence, and on a following-form basis.

22.2.5    Professional Liability Insurance. If the Work includes engineering, architectural, design or other professional services, Contractor shall secure and maintain or shall cause to be secured and maintained, professional liability insurance (errors and omissions) with a minimum single limit of *** to cover those liabilities caused by Contractor's errors, omissions or negligent acts related to the professional services being provided pursuant to this Agreement.

22.2.6    Contractor's Pollution Liability Insurance. Contractor shall maintain Contractor's Pollution Liability coverage, to provide coverage for Contractor's legal liability for environmental/pollution claims arising out of Contractor's Work, with limits of *** per occurrence.

22.2.7    Equipment, Supplies and Materials. All equipment, tools, supplies and materials (a) belonging to Contractor or to any of its Subcontractors or (b) used by or on behalf of Contractor or any of its Subcontractors for its performance hereunder which is not intended to become a permanent part of the completed Work shall be brought to and kept at the Site at the sole cost, risk and expense of Contractor or such Subcontractor, and Owner shall not be liable for loss or damage thereto.  Should such property be insured, said insurers shall waive rights of subrogation against Owner and its affiliates and the Owner Financing Parties.  Owner will not be responsible for any insurance premium payments related to the aforementioned equipment, supplies or materials.
    
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22.3    Owner's Insurance (General Coverages). Owner shall procure and maintain in full force and effect, the insurance policies specified in this Section 22.3.

22.3.1    Workers' Compensation Insurance and Employers' Liability Insurance.  In accordance with the laws of the State of California, Owner shall maintain in force workers' compensation insurance for all of its employees (if any).  Owner shall also maintain employer's liability coverage in an amount of not less than *** per accident and per employee for disease (if exposure exists).  In lieu of such insurance, Owner may maintain a self-insurance program meeting the requirements of the State of California along with the required employer's liability insurance.

22.3.2    Commercial General Liability Insurance.  Owner shall maintain commercial general liability insurance written on an occurrence basis and with a combined single limit of *** per occurrence and *** annual aggregate.  Such insurance shall include coverage for products/completed operations, broad form/blanket contractual liability for written contracts, broad form property damage and personal injury liability, independent contractor liability and hostile fire liability.

22.3.3    Automobile Liability Insurance.  Owner shall maintain automobile liability insurance (including coverage for owned, nonowned and hired automobiles) covering vehicles used by Owner (if any), including the loading or unloading of such vehicles, in an amount of *** combined single limit per occurrence for bodily injury, and property damage.

22.3.4    Umbrella or Excess Liability Insurance. Owner shall maintain umbrella/excess insurance on an occurrence basis covering claims in excess of the underlying insurance described in Sections 22.3.2 and 22.3.3 in an amount not less than *** per occurrence, and on a following-form basis.

22.4    Builder's All-Risk Insurance. On or before the Full Notice To Proceed Date, *** shall procure and thereafter at all times until PV Power Plant Substantial Completion, maintain, or cause to be maintained, builder's all-risk insurance in relation to the PV Power Plant.  Such builder's all-risk insurance shall be in a form acceptable to the *** and the ***.  *** shall provide and pay for builder's all-risk insurance for the PV Power Plant on the terms set out herein.

22.4.1    Additional Insureds.  Such builder's all-risk insurance shall include as additional insureds *** and ***, but only to the extent of their interests.  Such *** or its *** shall remain additional insureds until the PV Power Plant Substantial Completion Date.

22.4.2    Coverage.  Builder's all-risk shall cover all property in the course of construction, including the Work, PV Power Plant Hardware, miscellaneous equipment, buildings and structures, machinery, fixtures, furnishings and other properties constituting a part of the PV Power Plant (other than PV Power Plant Hardware properly covered under Contractor's equipment floater noted in Section

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22.2.7), from physical loss or damage caused by perils covered by a builder's all-risk form or equivalent coverage.  Such insurance shall:

(a)    include “extensions of coverage” (including earthquake, flood, collapse, sinkhole, subsidence, subject to sub-limits that are reasonably available in the commercial insurance marketplace);
(b)    include mechanical and electrical breakdown coverage during testing and commissioning, including the Performance Acceptance Tests and other operations of the PV Power Plant prior to Project Substantial Completion.  The builder's all-risk coverage shall not contain an exclusion for resultant damage caused by faulty workmanship, design or materials, which coverage shall be equivalent to LEG-2/96;
(c)    cover the PV Power Plant and the Site for removal of debris; and
(d)    otherwise cover damage to property and other claims arising out of the unloading, lifting, lowering or other handling of property at the Site.
Such insurance shall cover the full replacement cost of the Work or the property at the Site in relation to the PV Power Plant, as the case may be, then at risk, including primary cost of the PV Power Plant Hardware relevant to the PV Power Plant plus freight.
22.4.3    Loss Payees.  Losses if any, covered by builder's all-risk shall be payable to Owner, Owner Financing Parties, if any, Contractor, Contractor Financing Parties, if any, and Subcontractors as loss payees, as their respective interests may appear.  The policies shall be endorsed to state that, notwithstanding anything to the contrary, the interest of the aforementioned Persons, if any, shall not be invalidated by any act or failure to act on the part of Owner, Contractor or any other Person, and shall be insured regardless of any breach or violation by Owner, Contractor or any other Person of any warranties, declarations or conditions contained in such insurance policies.  The Parties agree that, in the event of physical loss of the PV Power Plant, any insurance proceeds under this Section 22.4 shall be reserved in a segregated account until such time as it has been determined whether or not to repair, replace or rebuild the damaged portions of the PV Power Plant, subject always to the terms of any lending agreements between Owner and, if applicable, Owner Financing Parties.

22.4.4    Deductibles.  Any required payments of the deductibles for claims relating to builders all-risk insurance shall be the responsibility of Contractor, subject to an aggregate maximum liability for such deductibles of ***.  To the extent Contractor is not the cause of loss or damage to Blocks which have achieved Substantial Completion, Contractor shall not be liable for deductible amounts associated with that loss or damage, notwithstanding any provision to the contrary in this Agreement. Owner shall be liable for payment of any deductible amounts due under the builder's risk insurance in excess of the amount for which Contractor is liable under this Section 22.4.4.

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22.4.5    Waivers of Subrogation.  Subject to the foregoing language related to policy deductibles, such insurance shall provide for a waiver of underwriters' right to subrogation against Owner, Contractor and Subcontractors of all tiers, provided, however, that such waiver shall not apply to the right to subrogation against any manufacturer or supplier of PV Power Plant Hardware if the loss or damage is caused, directly or indirectly, by a fault or defect in such PV Power Plant Hardware..

22.5    Endorsements Applicable to Contractor Insurance. All policies of liability insurance to be maintained by Contractor shall be written or endorsed to include the following:

(a)    With respect to workers' compensation/employer's liability insurance, to provide that the insurer shall waive for the benefit of Owner and where permitted by law, all rights of subrogation against Owner, its subsidiaries and Affiliates, Owner Financing Parties, co-venturers, landowners of the Site where the Project is located, or their directors, officers, members, managers, as well as their respective employees and/or agents of each;
(b)    With respect to commercial general liability, automobile liability and excess/umbrella insurance, to provide that Owner, its subsidiaries and Affiliates, Owner Financing Parties, if any, its co-venturers, landowners of the Site where the Project is located, or their directors, officers, members, managers, as well as the employees and/or agents of each shall be included as additional insured, and that all insurance policies (including Worker's Compensation, where permitted by law) shall waive any and all right of subrogation or recovery which the insurer may have or acquire against Owner, Owner Parent, subsidiaries and Affiliates, Owner Financing Parties, if any, its co-venturers, landowners of the Site where the Project is located, or their directors, officers, members, managers, as well as the employees and/or agents of each.  The additional insured status shall apply regardless of the enforceability of the indemnity provisions of this Agreement;
(c)    To provide a severability of interest or cross liability clause;
(d)    That the insurance shall be primary and not excess to or contributing with any insurance or self-insurance maintained by Owner;
(e)    With respect to coverage for completed operations under the general liability insurance, to be in place throughout the performance of the Work and for three (3) years after Final Completion. Such three (3) year tail following Final Completion shall be required only for general liability insurance and not for excess/umbrella insurance.
22.6    Subcontractor Insurance. Contractor shall require each of its Subcontractors performing work at the Site, to obtain, maintain and keep in force during the time during which they are involved in performance of the Work, insurance coverage in accordance with the insurance requirements of Contractor set forth in Sections 22.2.1, 22.2.2, 22.2.3 and 22.2.4 and 22.2.5 if providing engineering/design work; provided, however, that the limits of any such

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Major Subcontractors' Umbrella Excess Liability Insurance policies otherwise maintained in accordance with the requirements under Section 22.2.4, shall not be less than ***.  Subcontractors shall include Owner, its Affiliates and the landowner's of the Site where the Project is located as additional insured parties on the policies that Subcontractors maintain which are of the types listed in Sections 22.2.2, 22.2.3, and 22.2.4, and shall waive subrogation in favor of Owner, its Affiliates, Owner Financing Parties, and the landowner's of the Site where the Project is located under all policies they maintain which are of the types listed in Section 22.2.  Contractor agrees that all its subcontractors contractually agree that their insurance will respond on a primary basis to any similar insurance being maintained by Contractor, Owner, or any additional insured.  Any deviation from these requirements must be agreed to, in writing, by the Owner.

22.7    Contractor's Certificates. On or prior to the Full Notice to Proceed Date, Contractor shall furnish to Owner certificates of insurance from each insurance carrier showing that the insurance required of Contractor as set forth in this Article 22 is in full force and effect, the amount of the carrier's liability thereunder.  Contractor shall also be responsible for obtaining certificates of insurance for the insurance coverages required to be maintained by its Subcontractor in accordance with Section 22.6 from each Subcontractor before such Subcontractor is allowed to commence Work or enter the Site.  Certificates of insurance submitted under this Section 22.7 shall be in form and content reasonably acceptable to Owner.  Certificates of each renewal of the insurance should also be delivered to Owner and, if applicable, any Owner Financing Party promptly after receipt.

22.8    Owner's Certificates. On or prior to the Full Notice to Proceed Date, Owner shall furnish to Contractor certificates of insurance from Owner's insurance carrier(s), showing that the insurance coverages required of Owner as set forth in this Article 22 are in full force and effect, the value of the property being insured thereunder.  Certificates of insurance submitted under this Section 22.8 shall be in form and content reasonably acceptable to Contractor.  Certificates of each renewal of the insurance should also be delivered to Contractor and any Contractor Financing Party promptly after receipt.

22.9    Descriptions Not Limitations. The insurance coverages referred to in this Article 22 will be set forth in full in the respective policy forms, and the foregoing descriptions of such policies are not intended to be complete, nor to alter or amend any provision of the actual policies, and in matters (if any) in which the said description may be conflicting with such instruments, the provisions of the policies of the insurance shall govern; provided, however, that neither the content of any insurance policy or certificate nor approval thereof shall relieve either Parties of any of their obligations under this Agreement.

22.10    Cost of Premiums.  It is expressly agreed and understood that:

(a)    the cost of premiums for insurance required to be maintained by *** as set forth in this Article 22 and all Taxes thereon shall be borne by ***, and shall be endorsed to provide that *** shall have no liability for the payment of any premium thereon; and
(b)    that the cost of premiums for insurance required to be maintained by *** as set forth in this Article 22 and all Taxes thereon shall be borne by *** and shall be
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endorsed to provide that *** shall have no liability for the payment of any premium thereon.
22.11    Other Deductibles. Except as provided in Section 22.4.4 (with respect to deductibles relating to claims under the builders all-risk insurance), any required payment of any deductible for a claim relating to other insurance coverages to be maintained by either Party hereunder shall be the responsibility of the party being required to maintain that coverage, and *** shall be responsible for the payment of such deductibles relating to claims under the insurance policies described in Section 22.2.
22.12    Both Party's Rights to Provide Insurance. If either Party fails to provide or maintain any insurance required of it hereunder, then, on ten (10) days notice of its intent to do so and absent provision of the insurance, the other Party shall have the right, but not the obligation, to provide or maintain any such insurance, and to deduct the cost thereof from any amounts due and payable to the breaching Party (including, in the case of Owner, from any amounts due and payable to Contractor in respect of the Contract Price), or, if there are no such amounts due and payable to the breaching Party, the breaching Party shall reimburse the other Party for such costs on demand.  Should any of the policies required to be maintained by either Party become unavailable or be canceled for any reason during the period of this Agreement, such Party shall immediately procure replacement coverage.  The failure of either Party to procure such replacement coverage which is within the reasonable control of such Party (so as to provide continuous coverage) shall constitute a material breach hereunder.

22.13    No Limitation of Liability. The insurance coverages required of Contractor as set forth in this Article 22 shall in no way affect, nor are they intended as a limitation of, Contractor's liability with respect to its performance of the Work.  The insurance coverages required of Owner set forth in this Article 22 shall in no way affect, nor are they intended as a limitation of, Owner's liability with respect to its performance of its obligations hereunder.

22.14    Other Terms and Provisions.

22.14.1Unintentional Errors or Omissions.  It is hereby understood and agreed that the coverages afforded by the insurance policies required of either Party set forth in this Article 22 shall not be invalidated or affected by any unintentional omissions or errors.

22.14.2Notification.  Contractor and Owner shall notify the other Party of any and all incidents giving rise to an insurance claim, and otherwise keep the other Party timely apprised of insurance claim proceedings.

23.    RISK OF LOSS OR DAMAGE

23.1    Care, Custody and Control. Until the Block Substantial Completion Date with respect to a Block, Contractor shall have care, custody and control of such Block. From and after the earlier of (x) the Block Substantial Completion Date with respect to a Block and (y) the termination of this Agreement, care, custody, and control of the Work with respect to such Block shall pass to Owner.

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23.2    Risk of Loss. Subject to Section 22.4.4, Owner assumes risk of loss, and full responsibility, for the cost of replacing or repairing any damage to the Work related thereto (including the PV Power Plant Hardware), and assumes risk of loss, and full responsibility, for the cost of replacing or repairing any damage to any materials, equipment and supplies which are purchased by Contractor for permanent installation into the completed Project and which are located at the Site.

24.    INDEMNIFICATION

24.1    Comparative Fault. Notwithstanding anything to the contrary herein, it is the intent of the Parties that where fault is determined to have been joint or contributory, principles of comparative fault will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and liability attributable to such Party's fault.

24.2    By Contractor. Subject to Section 24.1, Contractor shall defend, indemnify and hold harmless, Owner, the Owner Financing Parties (if any) and any of their employees, shareholders, members, directors, officers, managers, representatives, successors and permitted assigns (each, an “Owner Indemnitee”) from and against the following, except to the extent arising from the sole negligence of an Owner Indemnitee:

(a)    all Losses arising from third-party claims for property damage (that is, not including the PV Power Plant), personal injury or bodily injury or death to the extent caused by any negligent, willful, reckless or otherwise tortious act or omission (including strict liability) during the performance of the Work or from performing the Work under this Agreement, or any curative action under any Warranty following performance of the Work, of Contractor, any Subcontractor (including Contractor's Affiliate as the provider of PV modules for the PV Power Plant), or anyone directly or indirectly employed by any of them, or anyone for whose acts such Person may be liable;
(b)    all Losses that directly arise out of or result from:
(i)    all claims for payment for Work performed, whether or not reduced to a lien or mechanics' lien, filed by Contractor or any Subcontractors, or other persons performing any portion of the Work, including reasonable attorneys' fees and expenses incurred by any Owner Indemnitee in discharging any Contractor Lien, except to the extent such claim is resulting from a breach by Owner to make payment under this Agreement; and
(ii)    employers' liability or workers' compensation claims filed by any employees or agents of Contractor or any of its Subcontractors;
(c)    all Losses arising from third-party claims, including claims by Subcontractors and claims for property damage, personal injury or bodily injury or death, and fines and penalties issued by Governmental Authorities, that directly or indirectly arise out of or result from the failure of Contractor, any of its Subcontractors, or the PV Power Plant as designed and constructed to comply with Applicable Laws;
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(d)    all Losses arising from claims by any Governmental Authority that directly or indirectly arise out of or result from the failure of Contractor or its Subcontractors to pay, as and when due, all Taxes, fees or charges of any kind that are the responsibility of Contractor or any of its Subcontractors or any of their respective agents or employees with respect to any payment for the Work made to or earned by Contractor or any of its Subcontractors or any of their respective agents or employees under this Agreement (which, for avoidance of doubt, expressly excludes Owner Taxes); and
(e)    all Losses, including claims for property damage or bodily injury or death, whether or not involving damage to the PV Power Plant or the Site, that arise out of or result from Pre-Existing Contamination at the Site except Unknown Pre-Existing Site Conditions, or the use of Hazardous Materials (other than arising as a result of Releases or spills described in Section 24.3(f)) whether lawful or unlawful, brought onto the Site by Contractor or any Subcontractor. Such use of or contamination by Hazardous Materials include:
(i)    the storage, transportation, processing or disposal of such Hazardous Materials; and
(ii)    any environmental condition caused by such Hazardous Materials.
(f)    ***
24.3    By Owner. Subject to Section 24.1, Owner shall defend, indemnify and hold harmless Contractor, its Subcontractors and any Person acting for or on behalf of Contractor and their respective employees, agents, partners, Affiliates, shareholders, members, directors, officers, members, managers, successors and permitted assigns (each, a “Contractor Indemnitee”) from and against the following, except to the extent arising from the sole negligence of a Contractor Indemnitee:

(a)    all Losses arising from third-party claims for property damage, personal injury or bodily injury or death to the extent caused by any negligent, willful, reckless or otherwise tortious act or omission (including strict liability) of Owner or any of its Affiliates, any Owner's Separate Contractor or anyone directly or indirectly employed by
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any of them, or anyone for whose acts such Person may be liable, during the performance by Owner of its obligations or failing to perform any of its obligations under this Agreement;
(b)    all Losses arising from third-party claims, including claims for property damage, personal injury or bodily injury or death that directly or indirectly arise out of or result from the failure of Owner, of any of its Affiliates or of any of Owner's Separate Contractors to comply with the terms and conditions of Applicable Laws;
(c)    all Losses arising from claims, assessments or any similar action by any Governmental Authority that directly or indirectly arise out of or result from the failure of Owner to pay or if applicable, reimburse Contractor, as and when due, all Taxes, fees or charges of any kind imposed by any Governmental Authority for which Owner is obligated to pay or if applicable, reimburse Contractor pursuant to the terms of this Agreement;
(d)    all Losses that directly arise out of or result from employers' liability or workers' compensation claims filed by any employees or agents of Owner or any of its Owner's Separate Contractors;
(e)    all Losses arising from any third party claim to the extent arising from the misuse of the License;
(f)    all Losses, including claims for property damage or bodily injury or death, whether or not involving damage to the PV Power Plant or the Site, whether lawful or unlawful, that directly or indirectly arise out of or result from:
(i)    the presence or existence of Hazardous Materials at the Site (A) brought onto or generated at the Site by Owner or any of Owner's Separate Contractors (other than Hazardous Materials that were brought onto the Site or generated by Contractor or any Subcontractor during the performance of the Work); or (B) which migrated onto the Site from another location (other than such Hazardous Materials that were brought onto the Site or generated by Contractor or any Subcontractor, or which Contractor or any Subcontractor Released or discharged in violation of its obligations under Section 27.3); or
(ii)    the Release or spill by Owner or its Affiliates or any of Owner's Separate Contractors or any Person for whom they are responsible, of Hazardous Materials, such Hazardous Materials otherwise having been brought onto the Site by Contractor or any Subcontractor in accordance with the terms of this Agreement and all Applicable Laws; and
(iii)    Unknown Pre-Existing Site Conditions; and
(g)    any and all fines, penalties or assessments issued by any Governmental Authority that Contractor may incur as a result of executing any applications at Owner's request.
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24.4    Patent Infringement and Other Indemnification Rights.

24.4.1    Contractor Obligation to Indemnify. Contractor shall defend, indemnify, and hold harmless the Owner Indemnitees against all Losses arising from any Intellectual Property Claim. Owner shall provide Contractor with reasonably prompt notice of any Claim for which Owner seeks indemnity hereunder. Contractor shall, at its own expense settle or defend any such Intellectual Property Claim and pay all damages and costs, including reasonable attorneys' fees, awarded against Owner and, if Owner is enjoined from completing the PV Power Plant or any part thereof, or from the use, operation or enjoyment of the PV Power Plant or any part thereof, as a result of a final, non-appealable judgment of a court of competent jurisdiction or as a result of injunctive relief provided by a court of competent jurisdiction, either:

(a)    procure for Owner, or reimburse Owner for procuring, the right to continue using the infringing service, PV Power Plant Hardware or other Work;
(b)    modify the infringing service, PV Power Plant Hardware or other Work so that the same becomes non-infringing; or
(c)    replace the infringing service, PV Power Plant Hardware or other Work with non-infringing service, PV Power Plant Hardware or other Work, as the case may be.
Notwithstanding the foregoing, in no case shall Contractor take any action which adversely affects Owner's continued use and enjoyment of the applicable service, PV Power Plant Hardware or other Work without the prior written consent of Owner.
24.4.2    Contractor Deliverables; Electronic Data Files.

(a)    Owner's acceptance of the Contractor Deliverables, supplied materials and equipment or other component of the Work shall not be construed to relieve Contractor of any obligation hereunder.
(b)    Except where any Contractor Deliverable shall be in the form of an electronic data file, any other electronic data files furnished to Owner pursuant to this Agreement are provided only for the convenience of Owner. Owner recognizes that such electronic data files not provided to Owner as a Contractor Deliverable may not be adequate or appropriate for Owner's needs. In the case of any discrepancies between the Contractor Deliverable represented by electronic data files and the plotted hardcopy of such files bearing the seal of Contractor's registered professional engineer, the sealed hardcopy shall govern. Contractor assumes no responsibility for the accuracy or completeness of the electronic data files not provided to Owner as a Contractor Deliverable, and any use or reuse of such electronic data for any purpose shall be at Owner's sole risk.
24.5    Claim Notice. An Indemnitee shall provide Notice to the indemnifying Party, within ten (10) days after receiving Notice of the commencement of any legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification may be

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sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such Notice, a “Claim Notice”). The Indemnitee's failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the indemnifying Party only by the amount of damages attributable to such failure or tardiness, but shall not otherwise relieve the indemnifying Party from any liability that it may have under this Agreement. In case any such claim or legal action shall be made or brought against an Indemnitee and such Indemnitee shall Notify (by sending a Claim Notice) the indemnifying Party thereof, the Indemnitee may by such Claim Notice require the indemnifying Party to assume and control the defense of the claim (other than any Intellectual Property Claim, which shall be controlled by Contractor unless otherwise agreed by the Parties) that is the subject of such Claim Notice, in which case the indemnifying Party may select counsel after consultation with the Indemnitee, and the indemnifying Party shall pay all expenses of the conduct of such defense. The Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be borne by the Indemnitee unless the indemnifying Party agrees otherwise; provided, however, that if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the indemnifying Party, the indemnifying Party requires that the same counsel represent both the Indemnitee and the indemnifying Party, and representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, then the Indemnitee shall have the right to retain its own counsel at the cost and expense of the indemnifying Party. If the indemnifying Party fails to assume or diligently prosecute the defense of any claim in accordance with the provisions of this Section 24.5, then the Indemnitee shall have the absolute right to control the defense of such claim and the fees and expenses of such defense, including reasonable attorneys' fees of the Indemnitee's counsel and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall be borne by the indemnifying Party, provided, however, that the indemnifying Party shall be entitled, at its expense, to participate in (but not control) such defense. Subject to all of the foregoing provisions of this Section 24.5:

(a)    as between the Parties, the indemnifying Party shall control the settlement of all claims, in coordination with any insurer as required under the applicable insurance policies in Article 22 as to which it has assumed the defense; provided, however, that to the extent the indemnifying Party, in relation to such insurer, controls settlement:
(i)    such settlement shall include a dismissal of the claim and an explicit release from the party bringing such claim or other proceedings of all Indemnitees; and
(ii)    the indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed; and
(b)    except as provided in the preceding sentence concerning the indemnifying Party's failure to assume or to diligently prosecute the defense of any claim, no Indemnitee seeking reimbursement pursuant to the foregoing indemnity shall, without the prior written consent of the indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or
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proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. The Indemnitee shall provide reasonable assistance to the indemnifying Party when the indemnifying Party so requests, at the indemnifying Party's expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the indemnifying Party with regard to the defense or indemnity obligations.
24.6    Survival of Indemnity Obligations. The indemnities set forth in this Article 24 shall survive the Final Completion Date or the earlier termination of this Agreement for a period of *** following the Final Completion Date or earlier termination. All Claim Notices must be delivered, if at all, to the applicable Party prior to the expiration of such period. If any Claim Notice is made within such period, then the indemnifying period with respect to all claims identified in such Claim Notice (and the indemnity obligation of the Parties hereunder with respect to such claim) shall extend through the final, non-appealable resolution of such claims. For purposes of clarification hereunder, without limiting the other rights granted hereunder to either Party, a Party may enforce the indemnity provisions hereunder pursuant to the provisions of Article 31 without having to declare an Owner Event of Default or a Contractor Event of Default, as applicable.

24.7    Treatment of Indemnification Payments. To the extent permitted by Applicable Law, the Parties agree to treat all indemnification payments made under this Agreement as adjustments to the Contract Price; provided, however, that any indemnification payments in respect of a Phase made subsequent to the submission of a Section 1603 Application or Section 1603 Commencement of Construction Application for that Phase shall be made on an After-Tax Basis unless (i) the underlying Claim for the indemnity corresponds to an express statement from the Department of Treasury that a reduction in the applied for Cash Grant is the result of the initial cost basis of the relevant portion of the Phase being less than that stated in the Cash Grant, or (ii) the contemplated reduction in purchase price from any such indemnity would not be inconsistent with the tax basis of the “qualified property” in that Phase stated in a Section 1603 Application or Section 1603 Commencement of Construction Application (prior to approval of that application) or as approved by the Department of Treasury in respect of the Cash Grant actually paid.

24.8    Contractor Lien Indemnity. Contractor shall indemnify, defend, and hold harmless, Owner, Owner-Financing Parties, and the title insurer(s) for Owner-Financing Parties against loss due to the perfection of any “Contractor Liens” with priority greater than that of the liens of the Owner-Financing Parties upon the assets of Owner.

25.    CONFIDENTIAL INFORMATION

25.1    Confidential Information. For purposes of this Agreement, the term “Confidential Information” means proprietary information concerning the business, operations and assets of Owner or Contractor (as the case may be), their respective parent companies, subsidiaries or affiliates (collectively, the “Disclosing Party”) that is clearly marked “Proprietary” or “Confidential” if disclosed in writing, and, if disclosed orally or visually, is communicated to be confidential at the time of disclosure and reduced to a writing marked

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“Proprietary” or “Confidential” within a period of thirty (30) days after the initial oral or visual disclosure by the Disclosing Party to the Party receiving the information (“Receiving Party”). Subject to the preceding sentence, Confidential Information may include information or materials prepared in connection with the performance of the Work under this Agreement, or any related subsequent agreement, designs, drawings, specifications, techniques, models, data, documentation, manuals, source code, object code, diagrams, flow charts, research, development, processes, procedures, know-how, manufacturing, development or marketing techniques and materials, development or marketing timetables, strategies and development plans, business plans, customer, supplier or personnel names and other information related to customers, suppliers or personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form (provided the requirements of the preceding sentence are satisfied), and any other trade secrets. In no event, shall Confidential Information include (a) information known to Receiving Party prior to obtaining the same from Disclosing Party (provided that such knowledge did not involve a breach of confidentiality obligations by any Person from whom such knowledge was directly or indirectly obtained) as reflected by the written records of Receiving Party; (b) information in the public domain at the time of disclosure by Disclosing Party; (c) information obtained by Receiving Party from a third party rightfully in the possession of such information and who did not receive same, directly or indirectly, from Disclosing Party; (d) information approved for public release by express prior written consent of an authorized officer of Disclosing Party; or (e) the materials specifically identified as “Non-Confidential Information” in Exhibit B.

25.2    Use of Confidential Information.

25.2.1    General. Receiving Party hereby agrees that it shall use the Confidential Information for the purposes of this Agreement, the PV Power Plant, and/or the Project. Receiving Party agrees to use the same degree of care Receiving Party uses with respect to its own proprietary or confidential information, which in any event shall result in a reasonable standard of care to prevent unauthorized use or disclosure of the Confidential Information. Except as otherwise provided herein, Receiving Party shall keep confidential and not disclose the Confidential Information. Owner and Contractor shall cause each of their directors, officers, managers, employees, agents, partners, representatives, Subcontractors, successors and permitted assigns to become familiar with, and abide by, the terms of this Section 25.2.

25.2.2    Disclosures Required under Applicable Law. Notwithstanding the provisions of this Section 25.2, Receiving Party may disclose any of the Confidential Information to the extent required by Applicable Law. Prior to making or permitting any such disclosure, Receiving Party shall provide Disclosing Party with prompt Notice of any such requirement so that Disclosing Party (with Receiving Party's assistance, if requested) may seek a protective order or other appropriate remedy. In any such event, the Receiving Party shall use commercially reasonable efforts, at the sole cost and expense of the Disclosing Party, to ensure that all Confidential Information that is so disclosed shall be accorded confidential treatment, to the extent possible, and shall so disclose only that portion of the Confidential Information that is legally required to be disclosed.

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25.2.3    Permitted Disclosures. Notwithstanding the foregoing, each party has the right to disclose Confidential Information without the consent of the Disclosing Party; (i) as required by any court or other Governmental Authority, or by any stock exchange on which the shares of any Party are listed; (ii) as required in connection with any government or regulatory filings, including filings with any regulating authorities covering the relevant financial markets; (iii) to its attorneys, accountants, financial advisors or other agents that require such information in connection with their work; (iv) to actual and prospective lenders, investors and other financing sources and their advisors, in each case to the extent necessary or advisable in connection with obtaining financing for the Project or the Work; (v) in connection with an actual or prospective merger or acquisition or similar transaction involving such Party or the parent entity of such Party, (vi) in the case of disclosures by Contractor, the Subcontractors and Suppliers, and (vii) in the case of disclosures by Owner, the Owner's Engineer, the Owner Parent and Affiliate of Owner that acts as operator of the Project. In each of cases (iii) through (vii) above, the Disclosing Party shall obtain from the third party to whom it seeks to disclose or to whom it has disclosed Confidential Information a binding confidentiality undertaking in writing agreeing to keep and use such information in confidence that is substantially similar to the undertakings of the Parties in this Article 25 (provided that no such agreement in writing shall be required from third parties who are in any event bound by legal or professional ethical obligations to maintain such confidentiality).

25.2.4    No Disclosure to Competitors. Notwithstanding anything to the contrary in this Agreement, except as required in the case of an emergency that is life-threatening or that can result in bodily injury. Owner shall not disclose any Confidential Information to any Competitor of SunPower.

25.2.5    Publicity. Notwithstanding anything to the contrary in this Section 25, Contractor shall have the right to utilize general information about the PV Power Plant, including photographs, in its promotional materials and public statements. All contractor usage of general information about the PV Power Plant, including photographs, must indicate that NRG is the owner of the Project and cannot disparage the Project or operation of it.  For a period of ten (10) years following Final Completion, Contractor shall be allowed: (1) to have reasonable room on the single NRG sign at the main entrances to the Project (specifications to be mutually agreed upon) identifying SunPower as the facility supplier and builder, and (2) to access the Site with guests, who shall not be a Competitor of NRG, for promotional purposes, including the taking of photographs, during normal business hours and at other times as are acceptable to Owner and with the Owner's permission. Owner shall have the right to join on any tours by Contractor, including those tours with media, political and community members. Contractor shall request access to the facility by telephone or email to Owner not less than one (1) week prior to any desired visit to the Site. Contractor shall require all Contractor personnel and guests admitted to the Site to observe all applicable safety standards. In addition to the foregoing, for a period of ten (10) years following Final Completion, Owner shall make available to Contractor read-only access to summary data relating to the performance of the PV Power Plant,

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which data shall only be used for purposes internal to Contractor and shall not otherwise be disclosed to any third parties.

25.2.6    Return of Confidential Information. At any time upon the request of Disclosing Party, Receiving Party shall promptly deliver to Disclosing Party or destroy if so directed by Disclosing Party (with such destruction to be certified by Receiving Party) all documents (and all copies thereof, however stored) furnished to or prepared by Receiving Party that contain Confidential Information; provided, however, that the Receiving Party may retain one copy of such Confidential Information; and provided, further, that all such retained Confidential Information shall be held subject to the terms and conditions of this Agreement.

25.2.7    Termination of Confidentiality. The confidentiality provisions set forth in this Agreement shall remain in full force and effect until the date that is two (2) years after the earlier of (i) the PV Plant Substantial Completion Date or (ii) the termination of this Agreement. After such date, unless otherwise agreed in writing by the Parties, no information previously designated as Confidential Information under this Article 25 shall need to be treated as confidential by the Receiving Party.

25.3    Remedies for Breach of Confidentiality Obligations. The Parties acknowledge that the Confidential Information is valuable and unique, and that damages would be an inadequate remedy for breach of the obligations set forth in this Article 25 and the obligations of each Party under this Article 25 are specifically enforceable. Accordingly, the Parties agree that a breach or threatened breach of this Article 25 by either Party, shall entitle the other Party to seek an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, monetary damages or any other legal or equitable remedy available to such Party, its direct and indirect parent companies, subsidiaries or Affiliates.

26.    ASSIGNMENT

26.1    Assignment to Other Persons. Except as otherwise provided in this Section 26.1, neither Party may assign or otherwise transfer this Agreement to any third party, without the prior written consent of the other Party. Notwithstanding the foregoing, nothing in this Agreement shall prevent either Party from engaging Affiliates or subcontractors in connection with the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoing:

(a)    Owner may (i) collaterally assign its rights, title and interest under this Agreement to any Owner Financing Party, or (ii) assign its rights, title and interest under this Agreement in connection with a sale-leaseback or other similar arrangement for the PV Power Plant and, in each case, in connection therewith, Contractor shall execute and deliver any usual and customary consents, customary legal opinions or other customary documents reasonably requested by Owner;
(b)    ***;
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(c)    Contractor may collaterally assign its rights, title and interest under this Agreement to any Contractor Financing Party, who may further assign such rights, title and interest under this Agreement upon foreclosure and, in connection therewith, Owner shall execute and deliver any usual and customary consents (which shall include customary additional cure periods for the benefit of such Contractor Financing Parties), legal opinions or other documents reasonably requested by Contractor; and
(d)    ***.
(e)    Notwithstanding anything in the foregoing, Owner shall not assign this Agreement or any rights or interests under this Agreement to any Competitor of SunPower.
Any attempted assignment or delegation in violation of this Section 26.1 shall be null and void and shall be ineffective to relieve either Party of its obligations hereunder.
26.2    Indemnitees; Successors and Assigns. Upon any assignment by either Party hereunder, the definition of “Owner Indemnitee” or “Contractor Indemnitee”, as applicable, shall be deemed modified to include the assignor and permitted assignee under such assignment and each of their respective employees, agents, partners, Affiliates, shareholders, officers, directors, members, managers, successors and assigns.

27.    HAZARDOUS MATERIALS

27.1    Use by Contractor. Contractor shall not and shall not permit any of its Subcontractors, directly or indirectly, to permit the manufacture, storage, transmission or presence of any Hazardous Materials on the Site except to the extent that any such Hazardous Material is required for the Work, and Contractor shall not and shall not permit any of its Subcontractors to Release, discharge or otherwise dispose of any Hazardous Materials on the Site, in each case, except in compliance with Applicable Law.

27.2    Remediation by Contractor. Without limiting what may constitute a Change In Law hereunder, Contractor shall conduct and complete all investigations, studies, sampling, testing and remediation of the Site to the extent required for compliance with Applicable Laws in connection with the Release, discharge or presence of Hazardous Materials brought onto or generated at the Site by Contractor or any Subcontractor unless such Release or discharge is caused by Owner, any Person for which Owner is responsible (including Owner's Separate Contractors) or any third party. Contractor shall promptly comply in all respects with all lawful orders and directives of all Governmental Authorities regarding Applicable Laws relating to the use, transportation, storage, handling, presence or Release by Contractor, any Subcontractor or any Person acting on its or their behalf or under its or their control, of any Hazardous Materials brought onto or generated at the Site by Contractor or any Subcontractor, except to the extent any such orders or directives are being contested in good faith by appropriate proceedings in connection with the Work.

27.3    Notice of Hazardous Materials.

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(a)    If Contractor discovers, encounters or is notified of the existence of any contaminated materials or Hazardous Materials at the Site, Contractor shall promptly Notify Owner thereof and restrict access to the area containing such contaminated materials or Hazardous Materials;
(b)    If Contractor discovers, encounters or is notified of any spill or Release of any Hazardous Materials at the Site:
(i)    if Contractor or any Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall promptly remove such Hazardous Materials from the Site and remediate the Site to the extent required for compliance with all Applicable Laws and Applicable Permits (to the extent the Applicable Permits relate to the Work) in each case at Contractor's sole cost and expense, except where such materials were Released or spilled by Owner, its Affiliates or any third party, including Owner's Separate Contractors; and
(ii)    if Contractor or any Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall not be entitled to any extension of time or additional compensation hereunder for any delay or costs incurred by Contractor as a result of the existence of such Hazardous Materials, except where such materials were Released or spilled by Owner, its Affiliates or any third party including Owner's Separate Contractors.
27.4    Pre-Existing Contamination.

27.4.1    Disclosure of Contamination; Duty to Notify. The Environmental Reports contain a description of, and information on, Pre-Existing Contamination on or prior to the Effective Date. Each Party shall Notify the other Party of any Hazardous Materials at or under the Site of which it becomes aware at any time following the Effective Date, which is not identified in the Environmental Reports.

27.4.2    Risk of Pre-Existing Contamination. Contractor hereby acknowledges and agrees that it shall bear the risk arising in relation to any and all Pre-Existing Contamination including in connection with a Release of Pre-Existing Contamination not in accordance with Applicable Law. The presence at or under the Site of any Hazardous Materials not identified in the Environmental Reports prior to the Effective Date and which were not introduced to the Site by Contractor, its Subcontractors or any other Person for whom Contractor is responsible under this Agreement, shall constitute an Excusable Event entitling Contractor to the relief provided pursuant to Section 8.4.

27.4.3    Owner Action. Upon the discovery of any Hazardous Material or other environmental conditions in violation of any Applicable Law or that adversely affects Contractor's ability to perform the Work, Contractor shall (i) promptly take action as appropriate with respect to Work in the affected area and if appropriate or

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required by Applicable Law, direct its workers and Subcontractors not to remove or further disturb the material or item; (ii) promptly provide Notice to Owner of such discovery; (iii) use commercially reasonable efforts to mitigate the effects of any such discovery on the Site, any property or Person, and the performance of the Work according to the CPM Schedule; and (iv) comply with all Applicable Laws with respect to such discoveries. Other that Pre-Existing Contamination which shall be at Contractor's risk, Owner shall, as it determines is necessary, at Owner's sole expense and risk, arrange for the handling, storage, transportation, treatment or delivery for disposal of such Hazardous Materials.

27.4.4    Contractor Action. Except with respect of Pre-Existing Contamination, if Contractor executes or completes (with the concurrence of Owner Representative) any required governmental forms relating to regulated activities, including any storage, treatment, transportation, handling or disposal of Hazardous Materials, Contractor shall be acting as, and be deemed to have acted as, Owner's agent strictly for such purpose. Contractor shall not be deemed the generator of any such Hazardous Materials nor shall Contractor be deemed to have title to such Hazardous Materials.

28.    NON-PAYMENT CLAIMS

To the extent payment by Owner has been made in accordance with Article 6:

(a)    Contractor shall not directly or indirectly create, incur, assume or suffer to be created by it or any Subcontractor, employee, laborer, materialman or other supplier of goods or services any right of retention, mortgage, pledge, assessment, security interest, lease, advance claim, levy, claim, lien, charge or encumbrance on the Work, the PV Power Plant Hardware, the PV Power Plant or any part thereof or interest therein (each a “Contractor Lien”);
(b)    Contractor shall keep the Work, the PV Power Plant and the PV Power Plant Hardware free of Contractor Liens; and
(c)    Contractor shall promptly bond, pay or discharge, and discharge of record, any liens or other charges which, if unpaid, might be or become a Contractor Lien. Contractor shall Notify Owner as soon as practicable of the assertion of any Contractor Lien.
If any Owner Indemnitee becomes aware of any such Contractor Lien, such Owner Indemnitee may so Notify Contractor, and Contractor shall then, to the extent payment by Owner has been made in accordance with Article 6: (x) bond or satisfy and obtain the release of such Contractor Lien; or (y) defend Owner Indemnitees against any such Contractor Lien and obtain the release of such Contractor Lien. If Contractor does not promptly, and in any event within fifteen (15) days after such Notice, satisfy such Contractor Lien, or give such Owner Indemnitee reasons in writing that are reasonably satisfactory to such Owner Indemnitee for not causing the release of such Contractor Lien, then any Owner Indemnitee shall have the right, at its option, after Notification to Contractor, and subject to Applicable Law, to cause the release of, pay, or settle
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such Contractor Lien, and Owner at its sole option may: (1) require Contractor to pay, within five (5) days after request by Owner; or (2) withhold such amount from amounts due or to become due to Contractor (in which case Owner shall, if it is not the applicable Owner Indemnitee, pay such amounts directly to Owner Indemnitee causing the release, payment or settlement of such liens or claims), all reasonable and direct costs and expenses incurred by Owner Indemnitee in causing the release of, paying, or settling such Contractor Lien, including administrative costs, reasonable attorneys' fees and other expenses. Contractor shall have the right to contest any such Contractor Lien.
29.    NOTICES AND COMMUNICATIONS

29.1    Requirements. Any Notice made pursuant to the terms and conditions of this Agreement shall be in writing and be: (a) delivered personally; (b) sent by certified mail, return receipt requested; or (c) sent by a recognized overnight mail or courier service, with delivery receipt requested; in each case to the following addresses:

If to Contractor:
SunPower Corporation, Systems
1414 Harbour Way South 
Richmond, CA 94804
Attention: Projects, Contract Administrator
With a copy to:
SunPower Corporation, Systems
1414 Harbour Way South 
Richmond, CA 94804
Attention: Jeffrey Dasovitch

If to Owner:
High Plains Ranch II LLC
c/o NRG Solar LLC
1301 McKinney Street; Suite 2300
Houston, Texas 77010
Attn: Director, Procurement
With a copy to:
NRG Energy, Inc.
211 Carnegie Center
Princeton, New Jersey 08540
Attn: General Counsel
29.2    Representatives. Any technical or other communications pertaining to the Work shall be with the Parties' designated representatives. Each Party shall Notify the other in writing of the name of such representatives. The Contractor's Project Manager and the Owner Representative each shall have knowledge of the Work and be available at all reasonable times for consultation. Each Party's representative shall be authorized on behalf of such Party to administer this Agreement, agree upon procedures for coordinating the efforts of the Parties, and, when appropriate, to furnish information to or receive information from the other Party in matters concerning the Work.

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29.3    Effective Time. Any Notice or Notification given personally, through overnight mail or through certified letter shall be deemed to have been received on delivery, and any Notice given by express courier service shall be deemed to have been received the next Business Day after the same shall have been delivered to the relevant courier.

30.    LIMITATIONS OF LIABILITY AND REMEDIES

30.1    Consequential Damages. To the extent permitted by Applicable Law, neither Party nor that Party's employees, agents, partners, Affiliates, shareholders, members, directors, officers, managers, successors, assigns and subcontractors shall be liable to any other Party hereto for any loss, damage or other liability otherwise equivalent to or in the nature of any indirect, incidental, consequential, exemplary, punitive or special damages arising from performing or a failure to perform any obligation under this Agreement, whether such liability arises in contract (including breach, indemnity or warranty), tort (including fault, negligence or strict liability), or otherwise, including for any loss of profits, loss of revenue, or loss of use of PV Power Plant Hardware, the PV Power Plant or the Project, downtime costs, increased expense of operation or maintenance of the PV Power Plant Hardware or the PV Power Plant, loss of opportunity or goodwill, cost of purchased or replacement power, equipment or systems, cost of capital, claims of customers for such damages, any governmental fines, penalties or sanctions imposed, subject in each case to the following exclusions:
(a)    liquidated damages payable pursuant to Article 16 of this Agreement;
(b)    termination payments provided for in Section 20.5;
(c)    damages claimed by third parties (other than Owner Indemnitees or Contractor Indemnitees) for which Contractor or Owner has a duty to indemnify hereunder as expressly provided in Article 24, to the extent that they are shown to be consequential in nature;
(d)    subject to limitation set forth in Section 30.3, damages arising out of a breach by a Party of Article 25 but not to exceed *** of the Contract Price.
The subcontractors of each Party shall be entitled to enforce this Section 30.1 as third party beneficiaries of this provision.
30.2    Limitations on Contractor's Liability.

30.2.1    Limitations on Contractor's Liability.

(a)    (Subject to clause (c) and (d) of this Section 30.2.1 and to the provisions of Section 30.2.2, Contractor's aggregate liability for claims by Owner or Owner Indemnitees arising out of or relating to this Agreement will in no event exceed an amount equal to the portions of the Contract Price shown for each period in the following Table:
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Construction Period
Limitation of Liability as Portion of Contract Price
Prior to the Phase Substantial Completion Date for Phase II
***
After the Phase II Substantial Completion Date
***
After the Phase III Substantial Completion Date
***
After the PV Power Plant Substantial Completion Date through the conclusion of all Warranty Periods
***

(b)    The above limits shall not apply to any insured claim to the extent that such claim is covered by insurance proceeds actually received from the insurance required to be maintained under this Agreement.

(c)    The above limits shall not apply to Contractor's indemnity obligations pursuant to Article 24.
(d)    The above limits shall not apply with respect to any willful misconduct or fraud on the part of Contractor.
30.2.2    Maximum Liquidated Damages. Contractor's maximum aggregate liability for liquidated damages under this Agreement will in no event exceed *** of the Contract Price, provided, however, that Contractor's liability for (a) Delay Liquidated Damages shall not exceed *** of the Contract Price and (b) Performance Liquidated Damages shall not exceed *** of the Contract Price.

30.3    Limitation on Owner's Liability. In no event shall Owner's liability pursuant to this Agreement, whether arising in contract, warranty, tort (including strict liability) or otherwise, be greater in the aggregate than the Contract Price; provided, however, that nothing contained in this Section 30.3 or in any other provision of this Agreement shall be construed to limit Owner's liability for: (a) Owner's indemnity obligations pursuant to Article 24; or (b) with respect to any willful misconduct or fraud on the part of Owner. Contractor's sole recourse for

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any damages or liabilities due to Contractor by Owner pursuant to this Agreement shall be limited to the assets of Owner without recourse individually or collectively to the assets of the members or the Affiliates of Owner, the Owner Financing Parties, if any, or their respective officers, directors, employees or agents of Owner, its members or their Affiliates ***.

31.    DISPUTES

31.1    Dispute Resolution. Any dispute or matter in question between the Parties arising out of or related to this Agreement (a “Dispute”) shall be resolved pursuant to the procedures set forth in this Article 31.

31.2    Referral to Contractor's Project Manager and Owner Representative. Disputes shall first be referred to Owner Representative and Contractor's Project Manager.

31.3    Referral to Authorized Officers. Any Dispute that cannot be resolved between Owner Representative and Contractor's Project Manager within five (5) days after such Dispute arose or, or in the case of payment Disputes, within five (5) days after receipt of a Notice of such Dispute from the affected Party, shall be referred for resolution, by Notice signed by either Owner Representative or Contractor's Project Manager (specifically referencing this Section 31.3), to the officers of the Parties or other authorized representative designated by them, each of which shall have the authority to negotiate and fully resolve the Dispute, neither of which shall be Owner Representative or Contractor's Project Manager (each an “Authorized Officer”). If a Party does not make such a designation, then such Party's Authorized Officer for purposes hereof shall be (i) for Owner, President and CEO, NRG Solar, Inc., and (ii) for Contractor, President, Utility and Power Plants. The Authorized Officers shall meet, either in person or by telephonic conference, within ten (10) days of the delivery of such Notice to attempt in good faith to resolve such Dispute. If the Authorized Officers are unable to resolve such Dispute within thirty (30) days after the Dispute has arisen (the “Discussion Period”), then either Party by Notice to the other Party may submit the Dispute, as applicable, to (i) an Independent Expert in accordance with Section 31.4 or (ii) arbitration in accordance with Section 31.5.

31.4    Independent Expert Resolution. For any Dispute involving Changes where the amount in controversy is less than or equal to *** (“Minor Change Dispute”), the claiming Party shall submit a Notice of the Minor Change Dispute to the other Party together with a proposed Independent Expert. Upon agreement by the Parties as to the selection of the Independent Expert, the Parties shall submit the Minor Change Dispute within fifteen (15) days after the termination of the Discussion Period to the Independent Expert for resolution. If the Parties are unable to agree on the selection of an Independent Expert, then the Minor Change Dispute shall be resolved in accordance with Section 31.5. Resolution of Minor Change Disputes shall be subject to the following, additional requirements and procedures:

(a)    the Notice to the responding Party shall include a description of the Minor Change Dispute, the amount (if any) and/or the schedule relief sought, and the grounds and documents on which the claiming Party relies in seeking to have the Minor Dispute determined in its favor. The responding party, within fifteen (15) days after receipt of such Notice shall deliver to the claiming Party and the Independent Expert a response setting forth any additional matters related to the Minor Change Dispute, the amount (if
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any) and/or the schedule relief sought, and the grounds and documents on which the responding Party relies in seeking to have the Minor Dispute determined in its favor;
(b)    the Independent Expert shall render his written decision on the Minor Change Dispute as soon as possible, but in any event, no later than twenty (20) days following the submission of the Dispute to the Independent Expert. Such decision shall take into consideration the relevant facts, the terms of this Agreement and Industry Standards. The decision and award of the Independent Expert shall be binding on the Parties and may be entered and enforced in any court provided in Section 31.5(b). The Independent Expert shall provide the Parties with a copy of such decision and award, including a concise written statement of the reasons on which it is based. The Parties shall promptly comply with such decision (which, in the case of an award, shall require the payment of same by the owing Party within ten (10) days following notification of such award); and
(c)    any fees or expenses charged by the Independent Expert in connection with the resolution of a Minor Change Dispute under this Section 31.4 shall be borne equally by Owner and Contractor.
31.5    Arbitration Resolution. Subject to Section 31.4 as it relates to a Minor Change Dispute, all Disputes that are not resolved by the procedures set forth in Sections 31.2 and 31.3, then either Party, without further delay, shall have the right to submit the Dispute to arbitration in accordance with the following procedures:

(a)    the proceedings shall (i) take place in Los Angeles, California; (ii) be conducted in accordance with Construction Industry Rules then in effect of the American Arbitration Association (except to the extent modified by this Section 31.5); (iii) consist of an arbitration panel composed of (x) an individual experienced in and knowledgeable of the engineering, procurement and construction of energy generating facilities selected by Owner, (y) an individual experienced in and knowledgeable of the engineering, procurement and construction of energy generating facilities selected by Contractor and (z) an individual experienced in and knowledgeable of the engineering, procurement and construction of energy generating facilities selected by each of the individuals selected by Owner and Contractor in clauses (x) and (y), respectively;
(b)    any decision or award of the arbitration panel shall be bound by all provisions of this Agreement and the arbitration panel shall have no authority or power to enter an award which is in conflict with any of the provisions of this Agreement. The decision or award must be in writing and must contain a reasoned statement of decision including findings of fact on which it is based. Absent fraud, collusion, mistake or manifest error such findings of fact shall be final. Any decision or award of the arbitration panel may be enforced or confirmed in a court of competent jurisdiction;
(c)    the fees and expenses of the arbitration panel shall be borne equally by Owner and Contractor; and
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(d)    any monetary award rendered by the arbitration panel pursuant to this Article 31 shall be due and payable within ten (10) days following such award.
31.6    Continuation of Work During Dispute. Pending the final resolution of any Dispute, Contractor shall proceed with the performance of the Work and its other duties and obligations under this Agreement without diminution of effort, so long as Owner continues to make payments of all undisputed amounts payable by Owner under this Agreement (subject to Owner's rights to dispute payments in accordance with this Agreement).

32.    INTELLECTUAL PROPERTY

32.1    Ownership. Subject to the license rights granted hereunder by Contractor, Contractor shall own and retain all right, title, and interest in and to all Intellectual Property developed, conceived, reduced to practice, or created by Contractor in the performance of the Work under this Agreement or otherwise, or delivered to Owner (including Third Party Intellectual Property) as part of the Work (including as part of the PV Power Plant) (the “Contract Intellectual Property”).

32.2    Irrevocable License. Subject to the terms of this Agreement, Contractor hereby grants and assigns to Owner a non-exclusive, royalty-free, paid-up, irrevocable, transferable to the extent specifically provided in this Section 32.3, perpetual license in and to the Contract Intellectual Property to use, solely in connection with the operation, maintenance, repair, modification, training of personnel, improvement and alteration of the Project and any component thereof (the “License”). The License granted to Owner pursuant to this Section 32.2 is granted only to the extent of Contract Intellectual Property that is included in the PV Power Plant, the Project, the Work or the Contractor Deliverables, including the Required Manuals.

32.3    Transfer and Assignment. The License herein and the tangible and intangible forms of the Contractor Deliverables provided to Owner may be transferred, assigned, or sublicensed to any Person to whom the PV Power Plant is sold, leased, assigned, or otherwise transferred and to any transferee, assignee, and successor in interest of Owner, and may be collaterally assigned to the Owner Financing Parties; provided, however, that the use of such Contract Intellectual Property shall be solely in connection with the operation, maintenance, repair, modification, training of personnel, improvement and alteration of the Project and any component thereof.

32.4    Subcontractor Licenses. With respect to the Third Party Intellectual Property owned or used by Subcontractors in performance of the Work, if the same is not included in the License, Contractor shall procure for Owner an irrevocable, perpetual, nonexclusive, royalty-free, paid-up, transferable to the extent specifically provided in Section 32.3, license to use such Third Party Intellectual Property in connection with the operation, maintenance, repair, modification, training of personnel, improvement and alteration of the Project and any component thereof.

32.5