Blue Sphere Corporation S-1/A


 


 Exhibit
10.62 


   


 SECOND
AMENDED AND RESTATED

RENEWABLE ENERGY POWER PURCHASE AGREEMENT 


 This
Second Amended and Restated Renewable Energy Power Purchase Agreement (the “Agreement”) is entered into as
of September 30, 2016, by and between ORBIT ENERGY CHARLOTTE, LLC, a North Carolina limited liability company with principal
offices located at [] (“Seller”), and DUKE ENERGY CAROLINAS, LLC, a North Carolina limited liability
company with principal offices located at [] (“Duke Carolinas”). Duke Carolinas and Seller are herein referred
to collectively as the “Parties” and individually as a “Party”. 


 RECITALS 


 WHEREAS,
Duke Carolinas and Seller are parties to that certain Amended and Restated Renewable Energy Power Purchase Agreement dated October
12, 2012, and subsequently amended on April 25, 2013; January 31, 2014; January 29, 2015; and August 11, 2016, (As amended the
“Previous Agreement”), pursuant to which Seller agreed to sell and Deliver (as defined herein), and Duke Carolinas
agreed to purchase and receive, Energy (as defined herein), and capacity from Seller’s Facility (as defined herein), and
all associated Renewable Energy Attributes (as defined herein); 


 WHEREAS,
the Parties now desire to further amend and restate the Previous Agreement to, consolidate all the amendments, extend the commercial
operation date and to make additional changes pursuant to terms and conditions set forth herein. 


 NOW
THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the Parties
agree as follows: 


 Article
1

DEFINITIONS 


 1.1          Definitions.
Any capitalized or abbreviated term not elsewhere defined in this Agreement shall have the definition set forth in this Article
1. As used in this Agreement, the following terms shall have the respective meanings set forth below. 


 “Account”
means a Party’s electronic account with the Tracking System. 


 “Administrator”
means a state or federal administrator, voluntary program standard-setting body, Certification Authority, if applicable, and any
Governmental Authority or other body with jurisdiction over Certification under, or the transfer or transferability of RECs in,
any particular Applicable Program. 


 “Affiliate”
means, with respect to any entity, each entity that directly or indirectly controls, is controlled by, or is under common control
with, such designated entity, with “control” meaning the possession, directly or indirectly, of the power to direct
management and policies, or otherwise have control of an entity, whether through the ownership of voting securities or by contract
or otherwise. 


 “Agreement”
is defined in the introductory paragraph hereof. 



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 “Applicable
Program” means an existing or future domestic, international or foreign renewable energy or emissions reduction program,
scheme or organization, adopted or approved by a Governmental Authority, or other similar program with respect to which exists
a market, registry or reporting for particular Renewable Energy Attributes associated with the Facility that is designated by
Duke Carolinas pursuant to and in accordance with Section 4.4.6. As of the Effective Date and throughout the Term, the REPS shall
be an Applicable Program. 


 “Auxiliary
Load” means Energy used to operate auxiliary equipment in the Facility necessary for power generation (such as pumps,
blowers, fuel preparation machinery, and exciters). 


 “Bankrupt”
means, that a Person (i) is the subject of a voluntary bankruptcy, insolvency or similar proceeding; (ii) applies for, seeks consent
to, or acquiesces in the appointment of a receiver, custodian, trustee, liquidator or similar official to manage all or a substantial
portion of its assets; (iii) is the subject of an involuntary bankruptcy or similar proceeding, and fails to have such proceeding
dismissed within sixty (60) days; (iv) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (v) makes
an assignment for the benefit of its creditors; or (vi) has a resolution passed for its winding-up, official management or liquidation
(other than pursuant to a consolidation, amalgamation or merger). 


 “Bankruptcy
Code” means those laws of the United States of America related to bankruptcy, codified and enacted as Title 11 of the
United States Code, entitled “Bankruptcy” and found at 11 U.S.C. § 101 et seq. 


 “Business
Day” means a day on which Federal Reserve member banks in Charlotte, NC are open for business, beginning at 0800 EPT
and ending at 1700 EPT. 


 “Certified”
or “Certification” means, if applicable, (i) the certification by the NCUC or its designee of (a) the creation
and characteristics of a REC, (b) the qualification of the Facility as a Renewable Energy Facility and, to the extent necessary,
or the Fuel Source used to generate Energy at the Facility as a Renewable Energy Resource under the REPS, (c) Delivery of a REC
or (d) other compliance with the requirements of the REPS or (ii) any certification by a Certification Authority or its designee
that is required pursuant to or in connection with any Applicable Program other than the REPS. 


 “Certification
Authority” means an entity that is responsible for issuing Certifications pursuant to, or in connection with, the REPS
or an Applicable Program. 


 “Change
of Control” has the meaning set forth in Section 9.4. 


 “Claim”
means any claim, demand, audit, cause of action, litigation, lawsuit, grievance, arbitration, mediation or proceeding (including,
without limitation, any bankruptcy, reorganization, dissolution, insolvency, liquidation, extension of bankruptcy or similar proceeding). 


 “Commercial
Operation” means Seller has successfully completed construction and testing of the Facility and has determined that
the Facility is operational at its full output capacity in order to Deliver Energy, and all associated Renewable Energy Attributes,
in accordance with the provisions of this Agreement. 



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 “Commercial
Operation Date” means the date that the Facility achieves or achieved Commercial Operation. 


 “Commercial
Operation Milestone Date” means the milestone date for Commercial Operation specified on the Milestone Schedule. 


 “Commercially
Reasonable Efforts” means, with respect to any action required to be made, attempted or taken by a Party under this
Agreement, the level of effort in light of the facts known to such Party at the time a decision is made that (i) can reasonably
be expected to accomplish the desired action at a reasonable cost and in accordance with any applicable Requirements of Law, and
(ii) is, to the extent applicable, consistent with Prudent Utility Practice. 


 “Defaulting
Party” has the meaning set forth in Section 8.1. 


 “Deliver”
or “Delivery” means, with respect to Energy, Seller’s delivery of Energy generated by the Facility to
the Delivery Point and, with respect to RECs, Seller’s electronic delivery and transfer of RECs from Seller’s Account
to Duke Carolinas’ Account via the Tracking System in accordance with the operating rules governing the Tracking System
and the REPS or Applicable Program. 


 “Delivery
Point” means the interconnection point between the Facility and Duke Carolinas’ distribution or transmission system,
as applicable. 


 “Effective
Date” shall mean the date of execution by Duke Carolinas and Seller of this Agreement. 


 “Energy”
means three-phase, 60-cycle alternating current electric energy, expressed in units of kWh or MWH , generated at the Facility
that is delivered to the Delivery Point. 


 “Energy
Price” means the applicable per MWh price for Energy, as set forth on Exhibit 3. 


 “Event
of Default” has the meaning set forth in Section 8.1. 


 “Facility”
means Seller’s facility located in Mecklenburg County, North Carolina, at 600 Johnson Road, Charlotte, NC 28206 as described
in Exhibit 1. 


 “Facility
Lender” means, collectively, any lender(s) providing any debt financing for the Facility and any successor(s) or assigns
thereto. 


 “FERC”
means the Federal Energy Regulatory Commission or any successor thereto. 



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 “Financing
Documents” means the loan and credit agreements, notes, bonds, indentures, security agreements, lease financing agreements,
mortgages, deeds of trust, interest rate exchanges, swap agreements and other documents relating to the development, bridge, construction
and/or permanent debt financing for the Facility, including any credit enhancement, credit support, working capital financing,
or refinancing documents, and any and all amendments, modifications, or supplements to the foregoing that may be entered into
from time to time at the discretion of Seller in connection with the development, construction, ownership, leasing, operation
or maintenance of the Facility. 


 “Force
Majeure” means an event not anticipated as of the Effective Date, which is not within the reasonable control of the
Party affected thereby or attributable to such Party’s fault or negligence, and which by the exercise of due diligence the
affected Party is unable to overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Force Majeure
includes, but is not restricted to: acts of God; fire; explosion; civil disturbance; sabotage; action or restraint by court order
or Governmental Authority, so long as the affected Party has not applied for or assisted in the application for, and has opposed
where and to the extent reasonable, such government action. Force Majeure shall not include the following: (i) Seller’s
ability to sell the Product or any component thereof to a market at a more advantageous price, (ii) lack of Fuel Source that is
not cause by or is not the result of a Force Majeure; (iii) Seller’s failure to obtain any Permit; (iv) a change in a Requirement
of Law; and (v) Seller’s failure to finance and/or construct the Facility. Increased cost of performance by Seller (including
the reduction or elimination of production tax credits or any similar subsidy associated with the production of electricity by
the Facility) shall not constitute an event of Force Majeure. 


 “Forced
Outage” means any condition at the Facility that requires immediate removal of the Facility, or some part thereof, from
service, another outage state, or a reserve shutdown state. For purposes of example only, this type of outage may result from
immediate mechanical/electrical/hydraulic control system trips and operator-initiated trips in response to Facility conditions
and/or alarms. 


 “Forward
Contract Merchant” has the meaning ascribed to such term in Section 101(26) of the Bankruptcy Code. 


 “Fuel
Source” means food and other organic waste resources that are, and qualify as, a Renewable Energy Resource including
without limitation Poultry Waste. 


 “Government
Action” is an action of a Governmental Authority to change the eligibility of the Product for an Applicable Program
or substantially change the requirements for compliance by persons obligated to comply with an Applicable Program. 


 “Governmental
Authority” means any federal, state or local government, legislative body, court of competent jurisdiction, administrative
agency or commission or other governmental or regulatory authority or instrumentality or authorized arbitral body, including,
without limitation, the Commission. 


 “Indemnified
Party” has the meaning set forth in Section 10.2. 


 “Indemnifying
Party” has the meaning set forth in Section 10.2. 


 “Initial
Security” has the meaning set forth in Section 6.10. 



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 “Interconnection
Agreement” means an agreement to be entered into by the Parties setting forth the terms and conditions under which the
Facility will be connected to Duke Carolinas electric system, consistent with the provisions of Section 3.7. 


 “Interconnection
Facilities” means all the equipment installed for the purpose of interconnecting the Facility to the Delivery Point,
including protective devices, metering equipment, etc., to permit parallel operation of the Facility with Duke Carolinas’
system. 


 “Interconnection
Facilities Charge” means the charges assessed by Duke Carolinas and to be paid by Seller in compensation for Duke Carolinas
providing the Interconnection Facilities, calculated in accordance with Section 3.7.2. 


 “Interconnection
Request” means a formal, written request issued by Seller to Duke Carolinas requesting that Duke Carolinas provide the
Interconnection Facilities. 


 “Interest
Rate” means the prime rate, as quoted in The Wall Street Journal as of the date on which the calculation begins,
plus one percent (1%), but not to exceed the maximum rate which may be lawfully charged. 


 “Issuer
Minimum Requirements” has the meaning set forth in Section 6.11. 


 “kW”
means kilowatt. 


 “kWh”
means kilowatt-hour. 


 “Letter
of Credit” has the meaning set forth in Section 6.11. 


 “Liabilities”
has the meaning set forth in Section 10.2. 


 “Master
Netting Agreement” has the meaning ascribed to such term in Section 101(38A) of the Bankruptcy Code. 


 “Maximum
REC Purchase Obligation” means the maximum quantity of RECs that Duke Carolinas shall be required to purchase and receive
each Operating Year, as set forth on Exhibit 3; provided, however, that, in the event that any Operating
Year begins on a date other than January 1 or ends on a date other than December 31, the applicable quantity set forth on Exhibit
3 shall be reduced on a pro rata basis. 


 “Milestone”
means each of the milestones identified on Exhibit 2. 


 “Milestone
Schedule” means the dates associated with the Milestones set forth on Exhibit 2. 


 “Minimum
REC Requirement” means the minimum quantity of RECs that Seller shall Deliver to Duke Carolinas each Operating Year,
as set forth on Exhibit 3; provided, however, that, in the event that any Operating Year begins on a date
other than January 1 or ends on a date other than December 31, the applicable quantity set forth on Exhibit 3 shall be
reduced on a pro rata basis. 



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 “Month”
or “Monthly” means a calendar month (or any partial calendar month at the outset of the Term or any Operating
Year in the event that the Term or any Operating Year, as applicable, commences during a calendar month). 


 “MW”
means megawatt. 


 “MWh”
means megawatt -hour. 


 “Nameplate
Capacity Rating” means the installed nameplate capacity rating of the Facility set forth in Exhibit 1. 


 “NC-RETS”
means the North Carolina Renewable Energy Tracking System. 


 “NCUC”
means the North Carolina Utilities Commission. 


 “NERC”
means the North American Electric Reliability Council. 


 “New
Renewable Energy Facility” means a facility that meets the requirements set forth in N.C. Gen. Stat. 62-133.8(a)(5). 


 “Non-Defaulting
Party” means the Party that has not caused the Event of Default. 


 “Operating
Year” means the period commencing on the Commercial Operation Date and ending on December 31 of the year in which the
Commercial Operating Date occurs and thereafter a calendar year beginning January 1 and ending December 31. 


 “Permit”
means any permit, license, registration, filing, certificates of occupancy, approvals, variances, or other authorizations from
or by any Governmental Authority and pursuant to any Requirements of Law. 


 “Person”
means any individual, entity, corporation, general or limited partnership, limited liability company, joint venture, estate, trust,
association or other entity or Governmental Authority. 


 “Poultry
Waste” means (a) the manure of poultry and/or (b) wastes associated with the production and/or processing of poultry
and products containing poultry, in each case that qualify for and are approved by the Commission as a poultry waste resource
under the Act for purposes of meeting compliance with N.C. Gen. Stat. § 62-133.8(f). 


 “Premises”
means the location of the Facility as set forth in Exhibit 1. 


 “Previous
Agreement” has the meaning set forth in the Recitals. 


 “Product”
means the capacity, the Energy and all ancillary products, services and attributes which are or can be produced by the Facility,
including, without limitation, all Renewable Energy Attributes. 


 “Product
Reporting Rights” means the exclusive right to report sole ownership of Renewable Energy Attributes to any Certification
Authority, Administrator, Governmental Authority or other party under any present or future Applicable Program, including the
REPS, and, including without limitation, for purposes of compliance, marketing, advertising, and/or otherwise. 



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 “Prudent
Utility Practice” means any of the practices, methods, standards and acts (including, but not limited to, the practices,
methods, standards and acts engaged in or approved by a significant portion of the electric power generation industry in the United
States) that, at a particular time, in the exercise of reasonable judgment in light of the facts known or that should reasonably
have been known at the time a decision was made, could have been expected to accomplish the desired result consistent with good
business practices, reliability, economy, safety and expedition, and which practices, methods, standards and acts generally conform
to operation and maintenance standards recommended by the Facility’s equipment suppliers and manufacturers, the applicable
Facility design limits, applicable governmental approvals and law. “Prudent Utility Practice” is not intended to be
limited to the optimum practice, method or act to the exclusion of all others, but rather to include acceptable practices, methods
or acts generally accepted. 


 “REC
Price” means, with respect to each type of REC to be Delivered by Seller to Duke Carolinas hereunder, the applicable
per REC price, as set forth on Exhibit 3. 


 “Renewable
Energy” means the Energy generated by a New Renewable Energy Facility. 


 “Renewable
Energy Attributes” means all of the attributes, characteristics, and other benefits associated with: (i) the generation
of Energy or Thermal Energy from the Facility and (ii) its displacement of conventional energy generation and/or use, which shall
include, but are not limited to, those unitized under the REPS and any other Applicable Program, and any other form of credits,
benefits, reductions, offsets, allowances, green tags, or other transferable indicia, howsoever entitled, designated by the REPS
or an Applicable Program. Notwithstanding the foregoing, Renewable Energy Attributes do not include (a) any Energy or Thermal
Energy generated by or capacity of the Facility, (b) investment, production, or other tax credits, grants, benefits, and/or deductions
associated with the construction, ownership, and/or operation of the Facility and other financial incentives, credits, reductions,
or allowances associated with the Facility that are applicable to local, state or federal tax obligations, (c) fuel-related subsidies
or “tipping fees” that may be paid to the Facility to accept certain fuels, or local subsidies received by the generator
for the destruction of particular preexisting pollutants or the promotion of local environmental benefits or (d) emission reduction
greenhouse gas credits (GHGs) encumbered or used by the Facility for compliance with local, state, provincial or federal operating
or air quality permits. For clarity, if the fuel utilized by the Facility for the generation of Energy or Thermal Energy includes,
receives, or is eligible to receive any tradable attributes of any manner, including, without limitation, those based on the heat
trapping, greenhouse gas reduction benefits, carbon offsets or other emission offsets attributed to the fuel, Seller shall include
with the fuel, and provide to Duke Carolinas, sufficient attributes to ensure that the production of Energy or Thermal Energy
by the Facility is deemed to be renewable energy and to ensure that there are zero net emissions associated with the production
of Energy or Thermal Energy by the Facility. Expressly subject to the foregoing requirement, Seller shall have right and title
to emission reduction greenhouse gas credits (GHGs) associated with the reduction of solid waste or treatment benefits created
by the Facility’s utilization of biomass or biogas fuels. 



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 “Renewable
Energy Certificate” or “REC” means, notwithstanding anything to the contrary in the REPS or any Applicable
Program, a certificate, credit, allowance, green tag, or other transferable indicia, howsoever entitled representing generation
of a particular quantity of Energy generated in compliance with the Applicable Program (including the REPS) using a qualifying
energy fuel resource (including a Renewable Energy Resource) and/or by a qualifying energy facility (including a New Renewable
Energy Facility). A REC shall represent all title to and claim over all of the Renewable Energy Attributes and Product Reporting
Rights associated with the Energy generated by the Facility. Unless modified by Government Action, an electric REC shall represent
the Renewable Energy Attributes associated with one (1) MWh of Energy, and a thermal REC shall represent the Renewable Energy
Attributes associated with 3,412,000 British thermal units (BTUs) of thermal energy. For clarity, references in this Agreement
to the purchase and sale of RECs shall include the purchase and sale of the Renewable Energy Attributes and Product Reporting
Rights. 


 “Renewable
Energy Resource” shall have the meaning set forth in N.C. Gen. Stat. 62-133.8(a)(8). 


 “Replacement
REC Costs” means (i) the positive difference between (a) the market cost of comparable in-state North Carolina Renewable
Energy Certificates associated with replacement of that portion of the Minimum REC Requirement that Seller failed to Deliver hereunder,
less (b) the aggregate amount, based on the applicable REC Price, for that portion of the Minimum REC Requirement that Seller
failed to Deliver hereunder, plus (ii) any additional costs. For the avoidance of doubt, additional costs may include, but are
not limited to, directly associated transaction costs, the amount of any penalty or any compliance payment made or incurred by
Duke Carolinas that is a direct result of Seller’s failure to Deliver the Minimum REC Requirement in order to be in compliance
with its obligations under the REPS or, if applicable, any Applicable Program for such Operating Year during which Seller failed
to Deliver the Minimum REC Requirement in compliance with this Agreement, and all reasonable out-of-pocket expenses (including
the reasonable fees and expenses of Duke Carolinas’ counsel) incurred by Duke Carolinas. 


 “REPS”
means the North Carolina Renewable Energy and Energy Efficiency Portfolio Standard, N.C. Gen. Stat. 62-133.8, including all rules
promulgated by the NCUC associated therewith, as each may be amended or modified from time-to-time, and any successor renewable
energy standards, statutes, regulations, or rules. 


 “Requirement
of Law” means any federal, state and local law, statute, regulation, rule, code, ordinance, resolution, order, writ,
judgment or decree or Permit enacted, adopted, issued or promulgated by any Governmental Authority, including, (i) those pertaining
to electrical, building, zoning, and occupational safety and health requirements or to pollution or protection of the environment
, and (iii) principles of common law under which a Party may be held liable for the release or discharge of any Hazardous Substance
into the environment. 


 “Scheduled
Outage” means a planned interruption/reduction of the Facility’s generation that is required for inspection, or
preventive or corrective maintenance. 


 “Secured
Events” has the meaning set forth in Section 6.10. 



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 “Seller”
is defined in the introductory paragraph. 


 “SERC”
means the Southeastern Electric Reliability Council. 


 “State
Commission” means the NCUC or the Public Service Commission of South Carolina, as applicable. 


 “Taxes”
has meaning set forth in Section 6.7. 


 “Term”
has the meaning set forth in Section 2.1. 


 “Thermal
Energy” means energy in the form of heat produced by the Facility as a direct byproduct of its generation of Energy
using the Fuel Sources, which thermal energy is measurable and is instantaneously used for useful purposes exclusively in compliance
with the requirements of the REPS and the NCUC’s rules, regulations, and requirements; provided, however, without limiting
the generality of the foregoing, use of the thermal energy for useful purposes excludes any and all uses for or in connection
with any electric power or Energy production or as station power. 


 Article
2

TERM 


 2.1          Effective
Date and Term. This Agreement shall be effective on the Effective Date and shall remain in full force and effect until
August 21, 2030 (the “Term”), unless sooner terminated or extended as provided herein. 


 Article
3

FACILITY DEVELOPMENT; INTERCONNECTION 


 3.1          Development
of Facility. Subject to the terms and conditions of this Agreement, Seller covenants as follows: 


 3.1.1          Except
as expressly permitted otherwise by this Agreement, the Facility shall be developed and achieve Commercial Operation in accordance
with this Agreement, the specifications in Exhibit 1, and the Milestone Schedule set forth in Exhibit 2, all at
Seller’s sole cost and expense. Seller shall not achieve Commercial Operation more than one hundred twenty (120) days prior
to the Commercial Operation Milestone Date without the written consent of Duke Carolinas. 


 3.1.2          The
Facility shall be designed, constructed, and tested in compliance with all applicable Permits, each applicable Requirement of
Law and Prudent Utility Practice, and shall qualify as a New Renewable Energy Facility. The Facility will be capable of supplying
the Product in a safe and reliable manner, consistent with the requirements of each applicable Requirement of Law and Prudent
Utility Practice. 



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 3.2          Progress
Reports. Within ten (10) days after the end of each Month following the Effective Date and until the Commercial Operation
Date, Seller shall prepare and submit to Duke Carolinas a written status report which shall (i) cover the previous Month,
(ii) be prepared in a manner and format (hard copy and electronic) reasonably acceptable to Duke Carolinas and (iii) include a
detailed description of the progress of the Facility’s construction, a statement of any significant issues which remain
unresolved and Seller’s recommendations for resolving the same, an updated report as to Seller’s adherence to the
Milestone Schedule, a summary of any significant events which are scheduled or expected to occur during the following thirty (30)
days, and any other information reasonably requested by Duke Carolinas. 


 3.3          Commercial
Operation. Seller will give written notice to Duke Carolinas approximately thirty (30) days before Seller expects
that the Facility will achieve Commercial Operation and when the Facility has achieved Commercial Operation. At any time that
Seller has reason to believe that the Facility is not likely to achieve Commercial Operation by the Commercial Operation Milestone
Date, Seller will provide written notice to Duke Carolinas along with the relevant facts. 


 3.4          Test
Energy and Associated RECs. To facilitate Seller’s testing of the Facility prior to Commercial Operation, Duke Carolinas
shall, upon reasonable notice by Seller, accept Delivery of all Energy and associated RECs produced by the Facility during testing
that are Delivered to Duke Carolinas in accordance with this Agreement, as specified in Exhibit 3; provided, however,
that, prior to Commercial Operation, the Energy Price shall be $48.19 per MWh, the Electricity REC Price shall be $20.22 per
REC and the Thermal REC Price shall be $6.43 per REC. 


 3.5          Seller’s
Cost and Expense; Tax Benefits. Notwithstanding any provision of this Agreement, (i) Duke Carolinas shall have no responsibility
whatsoever for any costs (including financing) necessary or desirable for the development, construction, operation, or maintenance
of the Facility, which shall be entirely at Seller’s sole cost and expense; and (ii) any risk as to the availability of
any attributes not included in the Renewable Energy Attributes shall be borne entirely by Seller. 


 3.6          Additional
Generation Capacity. Nothing in this Agreement shall require Seller to increase the generation capacity of the Facility
to exceed the nameplate capacity set forth in Exhibit 1. In addition, nothing in this Agreement shall prohibit Seller from
generating and/or installing additional generation capacity at or near the Premises so long as such installation does not interfere
with Seller’s performance hereunder; provided, however, that, for the avoidance of doubt, any such additional
generation capacity shall not be considered or deemed to be part of the Facility for purposes of this Agreement which exceeds
or is beyond 10% of the nameplate capacity set forth in Exhibit 1, and Duke Carolinas shall have no obligation whatsoever
to purchase the Energy or any Renewable Energy Attributes produced by such generation or additional generation capacity which
exceeds or is beyond 10% of the nameplate capacity set forth in Exhibit 1. 


 3.7          Interconnection. 


 3.7.1          Seller
represents, warrants and covenants that the Facility will be certified during the entire Term as a “qualifying facility”
as defined by FERC pursuant to Section 210 of the Public Utility Regulatory Policy Act of 1978, as amended. 



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 3.7.2          Duke
Carolinas will furnish, install, own and maintain the Interconnection Facilities, including protective devices, metering equipment,
etc., to permit parallel operation of the Facility with Duke Carolinas’ system. The Interconnection Facilities Charge, calculated
in accordance with the Extra Facilities Provisions of Duke Carolinas’ Service Regulations to be paid by Seller each month
shall be 1.1 percent (1.1%) of the installed cost of the Interconnection Facilities. Such installed cost shall be determined no
earlier than twelve (12) months prior to the installation of the Interconnection Facilities and will reflect the then current
costs, conditions and service requirements. 


 3.7.3          The
Interconnection Facilities Charge is subject to the rates, Service Regulations and conditions of Duke Carolinas as the same are
now on file with the State Commission and may be changed or modified from time to time upon approval by the State Commission.
Any such changes or modifications, including those which may result in increased Interconnection Facilities Charges, shall be
made a part of this Agreement to the same effect as if they were set forth herein. 


 3.7.4          Duke
Carolinas shall exert reasonable efforts to furnish and install the Interconnection Facilities no later than the reasonable date
requested by Seller for such installation. Seller’s obligation to pay the Interconnection Facilities Charge shall begin
on the date that such Interconnection Facilities become operational, except as provided in the immediately succeeding sentence,
and such charges shall apply at all times thereafter during the Term whether or not Seller is actually delivering Energy to Duke
Carolinas. If either Party is prevented from delivering or receiving Energy from the Facility on the Commercial Operations Date
by reason of an event of Force Majeure, then the beginning of Seller’s obligation to pay Interconnection Facilities Charges
shall be extended for a period proportionate to such delay. 


 3.7.5          Duke
Carolinas shall install and own such meters as shall be necessary to measure and record the Energy delivered from the Facility
hereunder. Such meters shall be located as set forth on Exhibit 1. The cost of such meters shall be included in the Interconnection
Facilities Charge. If meters are not installed at the Delivery Point, the meters or meter readings will be adjusted to reflect
losses from the metering point to the Delivery Point. 


 3.7.6          If
Duke Carolinas determines, based on calculations, studies, analyses, monitoring, measurement or observation, that the output of
the Facility will cause or is causing Duke Carolinas to be unable to provide proper voltage levels to its customers, then Seller
shall be required to comply with a voltage schedule and/or reactive power output schedule as prescribed by Duke Carolinas. In
addition, when the average Monthly power factor of the power supplied by Seller to Duke Carolinas is less than 90% or greater
than 97%, Duke Carolinas may adjust the quantity of Energy deemed to be delivered hereunder, in kilowatt hours, as appropriate.
Duke Carolinas reserves the right to install facilities necessary for the measurement of power factor and to adjust the Interconnection
Facilities Charge accordingly. 


 3.7.7          The
Parties shall enter into an Interconnection Agreement setting forth the further terms and conditions of interconnection. 



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 Article
4

PURCHASE AND SALE OBLIGATIONS; CONTRACT PRICE;

DELIVERY AND METERING 


 4.1          Sale
and Purchase of Total Output of Facility; Damages for Failure to Deliver. 


 4.1.1          Each
Operating Year during the Term, Seller shall sell and Deliver, and Duke Carolinas shall purchase and receive, the total output
of Energy, and all Renewable Energy Attributes associated with such output, based on the Facility’s nameplate capacity set
forth in Exhibit 1; provided, however, that, without limiting the generality of the foregoing and subject
to Force Majeure, (i) Seller shall sell and Deliver, and Duke Carolinas shall purchase and receive, an amount of RECs each Operating
Year that is at least equal to the Minimum REC Requirement and (ii) Duke Carolinas shall not, and shall have no obligation to,
purchase and receive an amount of RECs each Operating Year that is greater than the Maximum REC Purchase Obligation. Seller shall
not have the right to sell or deliver any Energy or Renewable Energy Attributes produced from the Facility to any other Person.
For the avoidance of doubt, as set forth in Section 3.6, Duke Carolinas shall not be required to purchase any Energy or Renewable
Energy Attributes that are associated with any additional generation capacity which exceeds or is beyond 10% of the nameplate
capacity set forth in Exhibit 1. 


 4.1.2          If
Seller fails to Deliver the Minimum REC Requirement to Duke Carolinas during any Operating Year, Seller shall pay damages to Duke
Carolinas in an amount equal to the Replacement REC Costs. In the event that any REC that was generated is later rescinded or
revoked by a Government Authority due to Seller’s default under Section 8.1, notwithstanding that the REC was Delivered
to and paid for by Duke Carolinas, Seller shall be liable for damages for any Replacement REC Costs associated with such rescinded
or revoked RECs. 


 4.2          Contract
Prices. In consideration of Seller’s sale to Duke Carolinas of the total output of Energy, and all Renewable Energy
Attributes associated with such output, Duke Carolinas shall, with respect to all Energy and RECs Delivered by Seller to Duke
Carolinas hereunder, pay the applicable Energy Price for such Energy and the applicable REC Price for such RECs as defined in
Exhibit 3. 


 4.3          Transmission
and Delivery Costs. Seller shall be responsible for any costs or charges imposed on or associated with the Product or
its Delivery of the Product up to and at the Delivery Point. Duke Carolinas shall be responsible for any costs or charges imposed
on or associated with the Product after its receipt from the Delivery Point. 


 4.4          REC
Transfer and Certification. 


 4.4.1          Seller
transfers to Duke Carolinas any and all, and the exclusive, right to sell, otherwise transfer or use the Renewable Energy Attributes,
which rights shall include any and all Product Reporting Rights. Seller shall not sell or transfer to any third party at any time
or report for its own account any Renewable Energy Attributes associated with the same electrical output from the Facility. Duke
Carolinas shall have the right, exclusive to the full extent applicable, to verify, Certify, and otherwise take advantage of the
rights, claims and ownership in the Renewable Energy Attributes and Product Reporting Rights purchased by Duke Carolinas hereunder. 



    	 12



     


    




 4.4.2          Seller
will be responsible for any Taxes imposed on the creation, ownership, or transfer of the RECs or other Renewable Energy Attributes
otherwise not represented by the Renewable Energy Certificate under this Agreement up to the time and place of Delivery. Duke
Carolinas will be responsible for any Taxes imposed on the receipt of ownership of RECs or such other Renewable Energy Attributes
at or after the time and place of Delivery. 


 4.4.3          Seller
shall be responsible for the initial and continuing certification and registration of the Facility with the NCUC and verification
of the Facility’s output for generation of RECs in the NC-RETS system and for all associated costs with such registration,
Certification and verification. Duke Carolinas shall be responsible for certification, verification or any other registration
obligation and associated costs that may be required for the unitization, regulation, certification and verification of the Renewable
Energy Attributes under any Applicable Program other than the REPS. Upon reasonable request by Duke Carolinas, and at Duke Carolinas’
cost, Seller shall use Commercially Reasonable Efforts to cooperate with Duke Carolinas to obtain such certification, verification
or other registration under such Applicable Program, which cooperation shall also include, but not be limited to, such actions
as required to effectuate Delivery of such Renewable Energy Attributes in the form of whatever transfer indicia is provided under
the Applicable Program. 


 4.4.4          After
the Commercial Operation Date, Seller shall, within fifteen (15) days after generation information for each billing period is
uploaded by Duke Carolinas into NC-RETS, Deliver an amount of RECs that is equal to the aggregate amount of RECs generated by
the Facility during such billing period. Without limiting the generality of the foregoing, if, in connection with an Applicable
Program designated by Duke Carolinas pursuant to Section 4.4.6, Delivery shall occur in a Tracking System other than NC-RETS,
Seller shall, within fifteen (15) days after the end of each Month after the Commercial Date, Deliver an amount of RECs that is
equal to the aggregate amount of RECs actually generated by the Facility for such Month. Seller will take all actions necessary
to meet all the requirements for the completion of Delivery of the RECs in accordance with this Agreement the Applicable Program
(including the REPS). Delivery of title of the RECs shall be deemed to have occurred when the transfer of the RECs from Seller’s
account to Duke Carolinas’ account is recorded in the NC-RETS system in accordance with the terms and conditions of the
operating rules therefor. Upon either Party’s receipt of notice from an Administrator that the transfer of RECs pursuant
to this Agreement will not be recognized or Delivery was not made as required, that Party will immediately so notify the other
Party, providing a copy of such notice, and both Parties will cooperate in taking such actions as are necessary and commercially
reasonable to cause such transfer to be recognized and RECs Delivered. Upon Duke Carolinas’ request from time to time, Seller
will execute and deliver any instrument of sale, transfer, assignment, or release which Duke Carolinas determines is necessary
or desirable to complete Delivery. Upon Delivery, all of Seller’s right, title, and interest in and to the RECs, in addition
to all of the Renewable Energy Attributes associated with the generation of Energy of the Facility that is otherwise represented
by the REC, will pass to Duke Carolinas. 



    	 13



     


    




 4.4.5          Seller
warrants that each REC Delivered hereunder will comply with the requirements of the Applicable Program under which the Facility
has been certified and/or registered. Upon the request of either Party, the other Party will cooperate and provide reasonable
assistance, including the provision of information and records, to support the requesting Party’s compliance with any informational
and reporting requirements under the REPS and, at Duke Carolinas’ cost, any Applicable Program designated by Duke Carolinas
pursuant to Section 4.4.6. 


 4.4.6          In
the event that Duke Carolinas shall desire to exercise its claim to the Renewable Energy Attributes for use under an Applicable
Program other than REPS or any other program, including a carbon offset program, Duke Carolinas shall provide reasonable written
notice to Seller that shall designate the Applicable Program, identify the information, documentation and such action that may
be required from Seller in order to cooperate with Duke Carolinas for certification and/or registration of Seller’s Facility
and verification of the Renewable Energy Attributes generated in association with the electrical output of the Facility under
the Applicable Program, and propose a reasonable time schedule for such production of information and documentation and for such
requisite action needed from Seller. Such notice shall also include provision for reimbursement and indemnification as provided
under this Agreement of any costs, expense, or capital expenditure that may be reasonably incurred by Seller in association with
such certification, registration and verification and any other condition or term necessary to effectuate Duke Carolinas’
right to and use of the Renewable Energy Attributes consistent with this Agreement, including those relating to the mechanism
of transfer and Delivery of such attributes. Seller is obligated to provide Renewable Energy Certificates, including the Renewable
Energy Attributes, and Seller shall not be required to participate in any Applicable Program, other than the REPS, that would
require Seller to Deliver to Duke Carolinas Renewable Energy Certificates, including the Renewable Energy Attributes, other than
as defined hereunder. 


 Article
5

OPERATION OF FACILITY 


 5.1          Facility
Requirements. During the Term, at its sole cost and expense, Seller covenants that: 


 5.1.1          The
Facility shall be operated, controlled, staffed and maintained in compliance with all Requirements of Laws and Prudent Utility
Practice, including all applicable operating guidelines established by NERC and SERC, if applicable; 


 5.1.2          The
Facility shall obtain, maintain and comply with all Permits and agreements (including all environmental permits) that are required
or desirable in order for the Facility and Seller to generate, schedule, meter and Deliver the Product in compliance with this
Agreement, except as otherwise permitted by Requirements of Law or by written agreement with Duke Carolinas; 


 5.1.3          Seller
shall take all actions necessary to maintain the registration of the Facility with the NCUC as a New Renewable Energy Facility
during the Term, except as set forth in Article 12; and 



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 5.1.4          Seller
shall, in addition to any information reasonably requested by Duke Carolinas with respect to the Facility’s REC production,
provide to Duke Carolinas by December 1 of each Operating Year a forecast of the Facility’s expected REC production for
each Month during the immediately following Operating Year and shall promptly notify Duke Carolinas of any material changes in
or to the forecast for the then-current Operating Year. 


 5.2          Outages.
Seller shall comply with all current Duke Carolinas, NERC, and SERC generating unit outage reporting requirements, as they
may be revised from time to time, and as they apply to the Facility. When Forced Outages occur, Seller shall notify Duke Carolinas
of the existence, nature, and expected duration of the Forced Outage as soon as practical, but in no event later than fifteen
(15) minutes after the Forced Outage occurs. Seller shall immediately inform Duke Carolinas of changes in the expected duration
of the Forced Outage unless relieved of this obligation by Duke Carolinas for the duration of each Forced Outage. All Scheduled
Outages shall be coordinated in advance with Duke Carolinas with a mutually agreed start date and duration. During the hours of
8:00 a.m. to 9:00 p.m. of any Business Day, Seller shall use Commercially Reasonable Efforts to (i) maximize the amount of Energy
produced by the Facility, and (ii) minimize the extent and duration of any Scheduled Outage and Forced Outages. 


 5.3          Electric
Supply to Facility. Any back-up and maintenance power for the Facility’s Auxiliary Load shall be provided to Seller
by Duke Carolinas pursuant to a separate electric service agreement under the Duke Carolinas rate schedule appropriate for such
service. 


 5.4          Duke
Carolinas’ Right To Curtail Facility. Duke Carolinas shall have the right to notify Seller by written or telephonic
communication to curtail the Delivery of Energy from the Facility to Duke Carolinas, and Seller shall immediately comply with
such notification. Duke Carolinas may provide such notification in a situation in which continued Delivery of the Energy will
(i) imminently endanger or is reasonably likely to imminently endanger life or property, (ii) adversely affect or is reasonably
likely to adversely affect the ability to maintain safe, adequate and reliable service to customers of the electric system to
which the Facility is connected, and (iii) adversely affect or is reasonably likely to adversely affect the safe and reliable
operation of the Facility. Duke Carolinas acknowledges and agrees that (a) the right described in this Section 5.4 is limited
to those situations described in (i)-(iii) above and shall be exercised in accordance with all Requirements of Law and Prudent
Utility Practice and (b) in the event that Duke exercises such right, Duke Carolinas shall use Commercially Reasonable Efforts
to minimize the scope and duration of any curtailment. 


 Article
6

BILLING AND PAYMENT; RECORDS; SECURITY 


 6.1          Invoices
and Payments. Duke Carolinas shall send to Seller a statement reflecting the calculation of the net amount due in reasonable
detail for the Product Delivered by Seller to Duke Carolinas for the previous billing period (if RECs are to be Delivered in NC-RETS)
or the previous Month (if RECs are to be Delivered in a Tracking System other than NC-RETS), which amount shall be equal to (i)
the Energy Price, multiplied by the number of MWh’s of Energy Delivered by Seller during such billing period or Month,
as applicable, and (ii) the REC Price, multiplied by the number of RECs Delivered by Seller during such billing period
or Month, as applicable. Duke Carolinas shall pay to Seller in immediately available funds the net amount reflected on the statement
described above by the twentieth (20th) day of the following Month. 



    	 15



     


    




 6.2          Late
Payment. Amounts owed by Duke Carolinas and not disputed, if not remitted within the time period specified under Section
6.1 above, shall accrue interest at the Interest Rate from the date due until the date paid. 


 6.3          Disputed
Billings. In case any portion of an invoice submitted pursuant to Section 6.1 hereof is in bona fide dispute, Duke Carolinas
may withhold payment of the disputed portion until such dispute is resolved. For each disputed payment, Duke Carolinas shall provide
Seller with a written statement of its grounds for disputing a bill prior to the due date of the invoice. Upon determination of
the correct amount, any such amount plus interest shall be paid within two (2) Business Days. Interest shall accrue as provided
in Section 6.2 hereof from the original invoice due date until the date of actual payment. 


 6.4          Adjustments.
If any overcharge or undercharge in any form whatsoever shall at any time be found and the statement therefor has been paid,
the Party that has been paid the overcharge shall refund the amount of the overcharge paid plus interest and the Party that has
been undercharged shall pay the amount of the undercharge plus interest, within thirty (30) days after final determination thereof;
provided, however, no retroactive adjustment shall be made for any overcharge or undercharge beyond a period of twenty-four (24)
Months from the date of the statement on which such overcharge or undercharge was first included. Interest shall accrue as provided
in Section 6.2 hereof from the original due date until the day of actual adjustment payment. 


 6.5          Records.
Each Party shall keep and maintain all records as may be necessary or useful in performing or verifying any calculations made
pursuant to this Agreement, or in verifying such Party’s performance hereunder. All such records shall be retained by each
Party for at least ten (10) calendar years following the calendar year in which such records were created. 


 6.6          Audit
Rights. Each Party, through its authorized representatives, shall have the right, at its sole expense and during normal
business hours, to examine and copy the records of the other Party to the extent reasonably necessary to verify the accuracy of
any statement, charge or computation made hereunder or to verify the other Party’s performance of its obligations hereunder.
If any statement is determined by the Parties or through arbitration to be inaccurate, a corrected statement shall be issued and
any amount due thereunder will be promptly paid and shall bear interest calculated at the Interest Rate from the date of the overpayment
or underpayment to the date of receipt of the reconciling payment, subject to the twenty-four (24) Month limitations period set
forth in Section 6.4. 


 6.7          Taxes.
Seller shall be responsible for all existing and any new taxes, fees, levies, assessments, penalties, licenses, or charges
imposed or levied by any federal, state or local governmental agency (collectively, “Taxes”) on the construction,
ownership, leasing, operation and maintenance of the Facility and the Energy associated with the Facility prior to Delivery to
Duke Carolinas. Duke Carolinas shall be responsible for all existing and any new Taxes imposed or levied by any federal, state
or local governmental agency on Product generated by the Facility after transfer to Duke Carolinas at the Delivery Point. If Duke
Carolinas is required to remit or pay Taxes that are Sellers’s responsibility under this Agreement, then Seller shall promptly
reimburse Duke Carolinas for such Taxes. If Seller is required to remit or pay Taxes that are Duke Carolinas’ responsibility
under this Agreement, then Duke Carolinas shall promptly reimburse Seller for such Taxes. 



    	 16



     


    




 6.8          Fuel
Costs. Seller shall provide to Duke Carolinas, on a Monthly basis within ten (10) days after Seller’s receipt of
the Monthly billing statement hereunder from Duke Carolinas and in a form to be mutually agreed upon by the Parties, information
on the Facility’s fuel costs, if any, for the Energy delivered to Duke Carolinas hereunder during the preceding Month. 


 6.9          Accounting
Matters. Seller will promptly deliver to Duke Carolinas any and all information in its possession, and which it is not
precluded from disclosing due to an obligation of confidentiality to third parties, related to the Seller, the Facility or this
Agreement, reasonably requested by Duke Carolinas to verify the treatment of this Agreement under FASB Statement No. 167, Consolidation
of Variable Interest Entities (“VIE”). If the information requested by Duke Carolinas belongs to the Facility
owner, Seller will use Commercially Reasonable Efforts to obtain that information from the Facility owner but will not have any
liability to Duke Carolinas, nor shall any Event of Default arise, if Seller is unable to obtain the information after requesting
it from the Facility owner. Such information may include, but is not limited to, data supporting the Facility’s economic
life, the Facility’s fair market value and the executory costs, non-executory costs, and investment tax credits or other
costs associated with the Facility, including any and all debt obligations related to the Facility. Seller will not knowingly
take any action that could cause Duke Carolinas to be subject to VIE treatment at any point during the Term. If a change in FASB
Statement No. 167 or any other accounting standard or applicable law causes Duke Carolinas to become subject to VIE treatment
at any point during the Term, Seller will cooperate with Duke Carolinas and take all reasonable steps requested by Duke Carolinas
to assist Duke Carolinas in curing such treatment or mitigating the effects of such treatment, to the extent incapable of cure. 


 6.10          Interconnection
Facility Security. No later than five (5) Business Days following the Effective Date, Seller shall post and thereafter
maintain security in the amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the “Initial Security”),
which shall be held by Duke Carolinas as security for Seller paying (i) the Interconnection Facilities Charge, and (ii) any damages
under Section 8.2 (collectively “Secured Events”). The Initial Security shall be in a form as provided for
in Section 6.11, and will be maintained in place until the end of the sixtieth (60th) month following the month in which Commercial
Operation is achieved. 



    	 17



     


    




 6.11        Form
of Interconnection Security. The Initial Security shall be in the form of either: 


 6.11.1          An
irrevocable transferable standby letter of credit (a “Letter of Credit”) in a form acceptable to Duke Carolinas
issued by a U.S. bank, or the U.S. branch of a foreign bank, with a minimum A- senior unsecured debt rating from S&P or Moody’s
and Ten Billion Dollars ($10,000,000,000) in assets (the “Issuer Minimum Requirements”). In the event that
senior unsecured debt ratings are unavailable, the issuer rating will be used. The Letter of Credit shall state that it shall
renew automatically for successive one-year or shorter periods unless Duke Carolinas receives written notice from the issuing
financial institution at least sixty (60) days, but not more than one hundred twenty (120) days, prior to the expiration date
stated in the Letter of Credit that the issuing financial institution elects not to extend the Letter of Credit. If Duke Carolinas
receives notice from the issuing financial institution that the Letter of Credit will not be extended, Seller will be required
to provide a substitute Letter of Credit from an alternative bank or financial institution satisfying the Issuer Minimum Requirements.
The receipt of the substitute Letter of Credit must be effective on or before the expiration date of the expiring Letter of Credit
and delivered to Duke Carolinas at least thirty (30) days before the expiration date of the original Letter of Credit. If Seller
fails to supply a substitute Letter of Credit as required herein, then Duke Carolinas will have the right to draw on the entire
amount of the expiring Letter of Credit and to hold the amount as collateral. If the credit rating of the issuer of a Letter of
Credit falls below the Issuer Minimum Requirements, Seller shall have two (2) Business Days (or such longer period as Duke Carolinas
in its sole discretion may permit in writing) following written notice by Duke Carolinas to obtain a suitable Letter of Credit
from another bank or other financial institution that meets the Issuer Minimum Requirements. If Seller fails to supply a suitable
Letter of Credit that meets the Issuer Minimum Requirements, then Duke Carolinas will have the right to draw on the entire amount
of the existing Letter of Credit and to hold the amount as collateral; or 


 6.11.2          a
guarantee, in form and substance satisfactory to Duke Carolinas, from an issuer that meets Duke Carolinas’ creditworthiness
requirements, which shall be determined in Duke Carolinas’ sole and reasonable discretion based on commercially reasonable
practices. 


 Article
7

REPRESENTATIONS AND WARRANTIES 


 7.1         Mutual
Representations. As a material inducement to execution of this Agreement, each Party hereby represents and warrants to
the other Party that: 


 7.1.1          It
is duly organized or formed, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its organization
or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder; 


 7.1.2          The
execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action
and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which
it or any of its property is bound, or any Requirement of Law applicable to it (evidence of which shall be delivered to the other
Party upon its request); 


 7.1.3          Except
as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration
or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance
of this Agreement; 


 7.1.4          It
is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the Product Delivered
and purchased under this Agreement and that this Agreement constitutes a Master Netting Agreement. 



    	 18



     


    




 7.2          Seller
Representations. 


 7.2.1          Seller
represents and warrants to Duke Carolinas that this Agreement is exempt from FERC jurisdiction with respect to the requirements
under Sections 205 and 206 of the Federal Power Act. 


 7.2.2          Seller
represents and warrants to Duke Carolinas as of each Delivery Date that: 


   (a)          the
Facility is registered with the NCUC as a New Renewable Energy Facility as defined in the REPS, and Seller owns or has the right
to the Renewable Energy Attributes associated with the Facility; 


   (b)          the
Facility and the RECs Delivered hereunder are registered with the applicable Tracking System (including the NC-RETS system); 


   (c)          Seller
has good and marketable title to the RECs, free and clear of any liens, Taxes, claims, security interests, or other encumbrances; 


   (d)          Seller
has not sold or otherwise transferred, and will not sell or otherwise transfer, the Renewable Energy Attributes sold or intended
to be sold to Duke Carolinas under this Agreement to any other Person or report the Renewable Energy Attributes sold or intended
to be sold to Duke Carolinas under this Agreement for its own account; 


   (e)          The
Facility shall generate renewable energy using the Fuel Source as the Facility’s exclusive fuel source such that the Facility
generates at least the Minimum REC Requirement during each Operating Year; and, 


   (f)          Neither
the Energy nor the RECs (consisting of the Renewable Energy Attributes to the extent defined hereunder and the Product Reporting
Rights) will be used or credited toward any other purpose, including, without limitation, another federal, state or international
renewable energy portfolio standard or voluntary or mandatory renewable energy program. For the avoidance of doubt, the foregoing
shall not affect Seller’s ability to use any renewable energy attributes that, for purposes of this Agreement, are not considered
to be Renewable Energy Attributes. 


 Article
8

EVENTS OF DEFAULT AND REMEDIES 


 8.1          Events
of Default. An “Event of Default” by a Party (the “Defaulting Party”) shall mean: 


 8.1.1          With
respect to Seller, an Event of Default shall occur, without notice or the opportunity to cure, if Seller: 


   (a)          sells
the Product or any component thereof (including Renewable Energy Certificates) of the Facility to any Person other than Duke Carolinas; 



    	 19



     


    




 (b)          tampers
with facilities owned by Duke Carolinas or its Affiliate or other material misconduct in connection with this Agreement; 


 (c)          fails
to achieve Commercial Operation by the Commercial Operation Milestone Date and Seller has failed to pay Buyer damages in accordance
with Section 8.2.1(f). 


 (d)          fails
to achieve any Milestone, other than the Commercial Operation Date (which is addressed in 8.1.1(c) above), within in 20 days after
the Milestone date specified for such Milestone in Exhibit 2; 


 (e)          fails
to Deliver the Minimum REC Requirement for two (2) consecutive Operating Years or for two (2) Operating Years during any four
(4)-Operating Year period; 


 (f)          abandons
construction or operation of the Facility; or 


 (g)          fails
to maintain registration of the Facility as a New Renewable Energy Facility with the NCUC. 


 8.1.2        With
respect to either Party, an Event of Default shall occur, without notice of the opportunity to cure, unless otherwise set forth
below, if such Party: 


 (a)          becomes
Bankrupt; 


 (b)          makes
any representation, warranty or covenant that is proven to be false or misleading in any material respect at the time it was made; 


 (c)          transfers
or assigns or otherwise conveys any of its rights or obligations under this Agreement to another Person without the other Party’s
prior written consent, to the extent such consent is required under this Agreement, or, if at the time of such transfer, assignment
or conveyance, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement
by operation of law or pursuant to an agreement reasonably satisfactory to the other Party; 


 (d)          fails
to make, when due, any undisputed payment required pursuant to this Agreement unless such Party shall have cured the same within
ten (10) Business Days after receipt of written notice of such payment failure from the other Party; or 


 (e)          fails
to perform any other material covenant or obligation set forth in this Agreement that is not otherwise enumerated in this Section
8.1, unless such Party cures such failure within sixty (60) days after receipt of written notice of such failure from the other
Party. 



    	 20



     


    




 8.2          Rights
Upon Default. 


 8.2.1        Upon
and during the continuation of an Event of Default, the Non-Defaulting Party shall be entitled to elect or pursue one or more
of the following remedies: 


 (a)          terminate
the Agreement by providing written notice to the Defaulting Party; 


 (b)          accelerate
all amounts then owing by the Defaulting Party to the Non-Defaulting Party; 


 (c)          withhold
any payments due to the Defaulting Party under this Agreement; 


 (d)          suspend
its performance under this Agreement; 


 (e)          recover
damages incurred by the Non-Defaulting Party as a result of the Event of Default, including, if Seller is the Defaulting Party,
recovery of Replacement REC Costs by Duke Carolinas; or 


 (f)          if
the Facility fails to achieve Commercial Operation in accordance with Section 8.1.1(c), Seller shall pay to Duke Carolinas, as
liquidated damages, five hundred thousand dollars ($500,000) within five (5) business days after such failure and the Agreement
shall be terminated without further opportunity to cure. Each Party stipulates that the liquidated damages set forth in this Section
are a reasonable approximation of the anticipated harm or loss and acknowledges the difficulty of estimation or calculation of
actual damages, and each Party hereby waives the right to contest such payments as unenforceable, an unreasonable penalty or otherwise;
or 


 (g)          pursue
any other remedies available at law or in equity, except to the extent such remedies are expressly limited by this Agreement. 


 8.2.2        Calling
on Security. In the event that (i) an Event of Default with respect to Seller has occurred and is continuing or (ii) Duke
Carolinas has issued a termination notice as a result of an Event of Default with respect to Seller, Duke Carolinas may exercise
any one or more of the rights and remedies provided under this Agreement or as otherwise available under applicable law. Without
limiting the foregoing, Duke Carolinas may, in such event, in its sole discretion and in addition to any of the remedies set forth
in Section 8.2.1 above, draw on any outstanding Letter of Credit issued for its benefit. Seller shall restore any Letter of Credit
to its original state or amount within thirty (30) days of the exercise of any right or remedy against or with respect to such
Letter of Credit by Duke Carolinas; provided, however, that the foregoing shall not apply in the event that Duke
Carolinas exercises any such right or remedy and, in addition thereto, terminates this Agreement. 



    	 21



     


    




 Article
9

ASSIGNMENT 


 9.1          No
Assignment Without Consent. Except as permitted in this Article 9, neither Party shall assign this Agreement or any portion
thereof, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided
(i) at least thirty (30) days prior notice of any such assignment shall be given to the other Party; (ii) any assignee, other
than under a collateral assignment, shall expressly assume the assignor’s obligations hereunder, unless otherwise agreed
to by the other Party, and no assignment, whether or not consented to, shall relieve the assignor of its obligations hereunder
in the event the assignee fails to perform, unless the other Party agrees in writing in advance to waive the assignor’s
continuing obligations pursuant to this Agreement; and (iii) before the Agreement is assigned by Seller, other than under a collateral
assignment, the assignee must first obtain such approvals as may be required by all applicable regulatory bodies. 


 9.2          Transfer
to Affiliates. Seller’s consent shall not be required for Duke Carolinas to assign this Agreement to an Affiliate
of Duke Carolinas, provided that Duke Carolinas provides assurances and executes documents reasonably required by Seller and the
Facility Lender regarding Duke Carolinas’ continued liability for all of Duke Carolinas’ obligations under this Agreement
in the event of any nonperformance on the part of such assignee. 


 9.3          Collateral
Assignment. Duke Carolinas’ consent shall not be required for Seller to assign this Agreement for collateral purposes
to the Facility Lender; provided, however, that no such assignment shall affect Duke Carolinas’ rights
to any RECs Delivered, or to be Delivered, hereunder or any other rights of Duke Carolinas or obligations of Seller hereunder.
Seller shall notify Duke Carolinas, pursuant to Section 9.1, of any such assignment to the Facility Lender no later than thirty
(30) days prior to the assignment. To facilitate Seller’s obtaining of financing to construct and operate the Facility,
Duke Carolinas shall use Commercially Reasonable Efforts to provide such consents to assignments, certifications, representations,
information or other documents as may be reasonably requested by Seller or the Facility Lender in connection with the financing
of the Facility; provided, that in responding to any such request, Duke Carolinas shall have no obligation to provide any consent,
or enter into any agreement, that materially adversely affects any of Duke Carolinas’ rights, benefits, risks and/or obligations
under this Agreement. 


 9.4          Seller
Chance of Control. Any direct or indirect Change of Control of Seller (whether voluntary or by operation of law) shall
require the prior written consent of Duke Carolinas, which shall not be unreasonably withheld. “Change of Control”
shall mean a change in either (1) fifty percent or more of the economic interests in Seller or (2) the ability to vote fifty percent
or more of the controlling interests in Seller; provided that a Change of Control shall not occur with respect to any change in
interests in a publicly traded company. 


 9.5          Notice
of Facility Lender Action. Within ten (10) days following Seller’s receipt of each written notice from the Facility
Lender of default, or Facility Lender’s intent to exercise any remedies, under the Financing Documents, Seller shall deliver
a copy of such notice to Duke Carolinas. 



    	 22



     


    




 Article
10

FORCE MAJEURE; INDEMNITY; LIMITATION OF LIABILITY 


 10.1          Force
Majeure. If either Party is rendered unable by a Force Majeure event to carry out, in whole or in part, its obligations
under this Agreement, then, during the pendency of such event of Force Majeure, but for no longer period, the obligations of the
affected Party (other than the obligation to make payments hereunder when due) shall be suspended to the extent required. The
affected Party shall (i) give the other Party written notice within 48 hours of the commencement of the Force Majeure event, with
details to be supplied within three (3) Business Days after the commencement of the Force Majeure event further describing the
particulars of the occurrence of the Force Majeure event, and (ii) use Commercially Reasonable Efforts to remedy the cause of
the Force Majeure event with all reasonable dispatch. Whenever either Party is required to commence or complete any action within
a specified period, such period shall be extended by an amount equal to the duration of any event of Force Majeure occurring or
continuing during such period; provided, however, that in no event will any Force Majeure event extend this Agreement beyond its
Term. This Agreement may be terminated by a Party upon written notice if the non-terminating Party fails to substantially perform
its obligations under this Agreement on account of a Force Majeure event for a period exceeding 180 days after the occurrence
of such Force Majeure event; provided that such 180 day period may be extended, by the written agreement of both Parties, for
an additional 180 days if (i) such Force Majeure event is not remedied within the original 180-day period with reasonable diligence,
(ii) such Force Majeure event may reasonably be expected to be remedied within the additional 180-day period, and (iii) the Party
not performing its obligations under this Agreement on account of such Force Majeure event promptly undertakes to remedy such
Force Majeure event and continues with reasonable diligence to effect such remedy within the additional 180-day period. 


 10.2          Indemnification. 


   10.2.1          Each
Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, its Affiliates
and each of their respective officers, directors, employees, agents and representatives (the “Indemnified Party”)
from and against all claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees)
for personal injury or death to persons and damage to the Indemnified Party’s real property and tangible personal property
or facilities or the property of any other person or entity (collectively, “Liabilities”) to the extent arising
out of, resulting from, or caused by an Event of Default under this Agreement, violation of any applicable environmental laws,
or by the negligent or tortious acts, errors, or omissions of the Indemnifying Party, its Affiliates, its directors, officers,
employees, or agents. The indemnification of third party claims provided under this Section is not limited by the limitation on
damages set forth in Section 10.3. Nothing in this Section shall enlarge or relieve Seller or Duke Carolinas of any liability
to the other for any breach of this Agreement. This indemnification obligation shall apply notwithstanding any negligent or intentional
acts, errors or omissions of the Indemnified Party, but the Indemnifying Party’s liability to pay damages to the Indemnified
Party shall be reduced in proportion to the percentage by which the Indemnified Party’s negligent or intentional acts, errors
or omissions caused the damages. Neither Party shall be indemnified for its damages resulting from its sole negligence, intentional
acts or willful misconduct. Without limiting the foregoing, Seller shall indemnify, defend and hold harmless Duke Carolinas (and
any Duke Carolinas’ Indemnified Party) from any Liabilities arising from the Product that occur when title of the Product
is vested in Seller and for any Claims arising from the design, construction, and operation of the Facility. 



    	 23



     


    




   10.2.2          The
Indemnifying Party shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the defense
of any Claim against the Indemnified Party, whether or not the Indemnifying Party shall be joined therein, and the Indemnified
Party shall cooperate with the Indemnifying Party in such defense. If such Claim is asserted against an Indemnified Party, the
Indemnified Party shall notify the Indemnifying Party promptly upon receipt of knowledge of such Claim and the Indemnified Party
shall promptly provide to the Indemnifying Party all information that it has received with respect to such Claim. No such Claim
shall be compromised or settled by the Indemnified Party without the prior written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld. The Indemnifying Party shall have charge and direction of the defense and settlement of such
Claim; provided, however, that without relieving the Indemnifying Party of its obligations hereunder or impairing the Indemnifying
Party’s right to control the defense or settlement thereof, the Indemnified Party may elect to participate through separate
counsel in the defense of any such Claim. The fees and expenses of counsel retained by the Indemnified Party shall be at the expense
of such Indemnified Party unless (a) such Indemnified Party shall have reasonably concluded that there exists a material conflict
of interest between the Indemnifying Party and such Indemnified Party in the conduct of the defense of such Claim (in which case
the Indemnifying Party shall not have the right to control the defense or settlement of such Claim on behalf of such Indemnified
Party, but no settlement shall be entered into without the consent of the Indemnifying Party, which consent shall not be unreasonably
withheld), or (b) the Indemnifying Party shall not have employed counsel to assume the defense of such Claim within a reasonable
time after notice of the commencement thereof (and in each of such cases the reasonable fees and expenses of counsel shall be
at the expense of the Indemnifying Party). 


 10.3          Limitations
of Remedies, Liability and Damages. THE PARTIES AGREE THAT THE REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT
SATISFY THE ESSENTIAL PURPOSES HEREOF. IF NO MEASURE OF DAMAGES OR OTHER REMEDY IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S
LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, WHICH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND
ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL
BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES, (OTHER THAN CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES RECOVERED BY AN UNAFFILIATED THIRD PARTY AGAINST A PARTY SUBJECT TO INDEMNIFICATION HEREUNDER), WHETHER SUCH DAMAGES ARE
ALLOWED OR PROVIDED BY STATUTE, IN TORT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. 



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 Article
11

GOVERNMENT ACTION 


 11.1          General.
The Parties acknowledge that the Applicable Programs, which, among other things, establish the conditions for a market for
RECs, may be the subject of Government Action (including court challenge) that could adversely affect the eligibility of the electrical
output from the Facility to meet the requirements of an Applicable Program or otherwise alter the requirements of an Applicable
Program, or make RECs unavailable or dramatically diminished or increased in value. Except as set forth in Section 11.2, Government
Action that changes in any respect the market or economic value of the RECs will have no effect on the obligation of the Parties
to purchase and receive, and sell and Deliver, the RECs at the price and on the terms set forth in this Agreement. To the extent
that Government Action renders a Party’s performance of any of its obligations hereunder illegal, including the Delivery
of the RECs, this Agreement will be terminated automatically without penalty to either Party and any further action by the Parties.
Notwithstanding the foregoing, this Agreement will not be affected, cancelled, or otherwise impaired by Government Action that
is specific to a Party under Applicable Law taken by a Government Authority alleging that Party’s violation thereof. 


 11.2          Affecting
REPS/Applicable Program. If Government Action which occurs after the Effective Date causes the output of the Facility
or any RECs to fail to meet the requirements of REPS or any Applicable Program for which approval has been sought or obtained
under Section 4.4.6 of this Agreement, then Seller shall exercise Commercially Reasonable Efforts to cause the Facility and its
output or the RECs to maintain compliance with REPS at its own cost, and shall use Commercially Reasonable Efforts to cooperate
with Duke Carolinas to cause the Facility and its output or the RECs to maintain compliance with such other Applicable Program
at Duke Carolinas’ cost. 


 11.3          Carbon
Offset Legislation/Tradable Attributes. In the event that, as a result of Government Action or other legislative, administrative,
voluntary, mandatory, or regulatory process, the Facility may generate only carbon offsets or RECs, but not both, then Seller
shall take, or cause to be taken, such action as necessary to ensure that Renewable Energy Attributes and RECs sufficient to fulfill
its obligations under this Agreement are produced from the Facility and the underlying fuel used to generate the Energy. If the
Facility generates, receives, or is eligible to receive any tradable attributes of any manner that are not Renewable Energy Attributes,
Seller (i) shall have right and title to all such attributes and (ii) shall operate the Facility in a manner that ensures Duke
Carolinas receives the RECs (including the Renewable Energy Attributes) hereunder and Duke Carolinas’ entitlement to receive
the RECs (including the Renewable Energy Attributes) associated with the Energy generated by the Facility are not undermined or
otherwise affected. 


 Article
12

DISPUTE RESOLUTION 


 12.1          Arbitration. 


   12.1.1          Any
and all disputes and controversies arising out of or in connection with this Agreement shall be decided exclusively by binding
arbitration in Charlotte, North Carolina in accordance with the Commercial Arbitration Rules of the American Arbitration Association
(except as expressly provided otherwise herein). The arbitration shall be governed by the United States Arbitration Act (9 U.S.C.
§ 1 et seq.), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. This agreement to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith will
be specifically enforceable under the prevailing arbitration law of any court having jurisdiction. Any arbitration may be consolidated
with any other arbitration proceedings between the Parties commenced under this Section 12.1. The award of the arbitrator shall
be specifically enforceable in a court of competent jurisdiction. 



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 12.1.2          Either
Party may commence the arbitration by giving to the other Party written notice in sufficient detail of the existence and nature
of any dispute proposed to be arbitrated. The demand must be made within a reasonable time after the dispute has arisen. In no
event may the demand for arbitration be made if the institution of legal or equitable proceedings based on such dispute is barred
by the applicable statute of limitations. The Parties shall attempt to agree on a person to serve as arbitrator with respect to
the matter at issue. If the Parties cannot agree on an arbitrator within ten (10) Business Days of such notice, each shall then
appoint one individual to serve as an arbitrator within thirty (30) Business Days of such notice and the two (2) individuals thus
appointed shall select a third arbitrator to serve as chairman of the panel of arbitrators. Such three (3) arbitrators shall determine
all matters by majority vote; provided however, if the two (2) arbitrators appointed by the Parties are unable to agree upon the
appointment of the third arbitrator within ten (10) Business Days after their appointment, both shall give written notice of such
failure to agree to the Parties, and, if the Parties fail to agree upon the selection of such third arbitrator within five (5)
Business Days of such notice, then either of the Parties upon written notice to the other may require such appointment from, and
pursuant to the rules of, the Philadelphia office of the American Arbitration Association for commercial arbitration. Any arbitrator
appointed shall be a present or former executive of an electric utility, or private power producer, or an attorney, in each case
with substantial experience in electric power purchase agreements. Prior to appointment, each arbitrator shall agree to conduct
such arbitration in accordance with the terms of this Agreement. 


 12.1.3          The
Parties shall have sixty (60) calendar days after appointment of all arbitrators to perform discovery and present evidence and
argument to the arbitrators. During that period, the arbitrators shall be available to receive and consider all such evidence
as is relevant and, within reasonable limits due to the restricted time period, to hear as much argument as is feasible, giving
a fair allocation of time to each Party to the arbitration. The arbitrators shall use all reasonable means to expedite discovery
and to sanction noncompliance with reasonable discovery requests or any discovery order. The arbitrators shall not consider any
evidence or argument not presented during such period and shall not extend such period except by the written consent of both parties.
At the conclusion of such period, the arbitrators shall have forty-five (45) calendar days to reach a determination. 


 12.1.4          The
arbitrators shall have the right only to interpret and apply the terms and conditions of this Agreement and to order any remedy
allowed by this Agreement, and may not change any term or condition of this Agreement, deprive either Party of any right or remedy
expressly provided hereunder, or provide any right or remedy that has been excluded hereunder. 


 12.1.5          The
arbitrators shall give a written decision to the Parties stating their findings of fact, conclusions of law and order, and shall
furnish to each Party a copy thereof signed by them within five (5) calendar days from the date of their determination. Each party
shall pay the cost of the arbitrator or arbitrators, with respect to those issues as to which they do not prevail, as determined
by the arbitrator or arbitrators. 



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 12.2        Preliminary
Injunctive Relief. Nothing in this Article 12 shall preclude, or be construed to preclude, the resort by either party
to a court of competent jurisdiction solely for the purposes of securing a temporary or preliminary injunction to preserve the
status quo or avoid irreparable harm pending arbitration pursuant to this Article 12. 


 Article
13

MISCELLANEOUS 


 13.1        Confidentiality;
Publicity. 


 13.1.1          Neither
Party will disclose the terms or conditions of this Agreement to a third party (other than the Party’s employees, guarantor,
lenders, counsel, accountants, agents or advisors who have to know such information and have agreed to keep such terms confidential),
except in accordance with the terms set forth in this Section. In the event that any Party (or any of such Party’s employees,
guarantors, lenders, counsel, accountants, agents or advisors) (collectively, the “Required Party”) is required
to disclose any term of this Agreement (i) in order to comply with any applicable law or regulation, including, but not limited
to, any public records request, or request of any regulatory agency having colorable jurisdiction over the Party and requesting
the confidential information in the ordinary course of business; (ii) pursuant to any rule or requirement of any Certification
Authority, Administrator or Governmental Authority administering an Applicable Program; or (iii) in connection with any court
or regulatory proceeding, the Required Party shall (a) provide the other Party (the “Notified Party”) with
prompt written notice of any such request or requirement so that such Notified Party may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Section and (b) reasonably cooperate with such Notified Party to obtain
such protective order or other remedy. In the event such protective order or other remedy is not obtained and the Notified Party
fails to waive compliance with this Section of this Agreement, the Required Party agrees to (I) furnish only those terms of this
Agreement for which the Required Party is advised by its legal counsel in writing that it is legally required to be disclosed,
(II) upon the Notified Party’s request and expense, use its commercially reasonable efforts to obtain assurances that confidential
treatment will be accorded to such terms, and (III) give the Notified Party prior written notice of the terms to be disclosed
as far in advance of its disclosure as is reasonably practicable. Notwithstanding anything in this Section 13.1.1 to the contrary,
Duke Carolinas may, without the consent of, or any prior notice to, Seller, disclose the terms or conditions of this Agreement
in any REPS-related compliance report or filing made by Duke Carolinas with the NCUC. 


 13.1.2          Seller
shall not make any announcement or release any information concerning this Agreement to any member of the public, press, Person,
or any official body, without Duke Carolinas’ prior written consent. 


 13.2        Entire
Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof,
and it supersedes all prior oral or written agreements, commitments, negotiations or understandings with respect to the matters
provided for herein, including, but not limited to, the Original Agreement. 



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 13.3          Amendment.
Unless expressly provided otherwise in another provision of this Agreement, this Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by both Parties. It is agreed that no regular practice or method of
dealing between the Parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. 


 13.4          Waiver.
Any agreement on the part of a Party to any extension or waiver of any provision hereof shall be valid only if set forth in
an instrument in writing signed on behalf of such Party. A waiver by a Party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any other covenant, agreement, obligation, condition,
representation or warranty. A waiver by a Party of the performance of any act shall not constitute a waiver of the performance
of any other act or an identical act required to be performed at a later time. 


 13.5          Remedies
Cumulative. No right or remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other
right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this
Agreement, or under applicable law, whether now or hereafter existing. 


 13.6          Interpretation. 


   13.6.1          In
this Agreement, unless a different intention clearly appears: (a) the singular includes the plural and vice versa; (b) the reference
to any Party includes such Party’s legal and/or permitted successors and assignees, and reference to a Party in a particular
capacity excludes such Party in any other capacity or individually; (c) the reference to any gender includes the other gender;
(d) reference to any document other than this Agreement refers to such documents as may be amended, modified, replaced or superseded
from time to time, or any successor document(s) thereto; (e) reference to any Article, Section or Exhibit means such Article,
Section or Exhibit of this Agreement unless otherwise indicated; (f) “hereunder”, “hereof’, “hereto”,
and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other
provision; (g) “including” (and with correlative meaning “include”), when following any general statement
or term, is not to be construed as limiting the general statement or term to the specific items or matters set forth or to similar
items or matters, but rather as permitting the general statement or term to refer to all other items or matters that could reasonably
fall within its broadest possible scope; (h) relative to the determination of any period of time, “from” means “from
and including”, “to” means “to but excluding” and “through” means “through and
including”; (i) reference to any law or regulation refers to such law or regulation as may be amended, modified, replaced
or superseded from time to time, or any successor law(s) or regulation(s) thereto; and (j) reference to “termination of
this Agreement,” “this Agreement is terminated,” “this Agreement may be terminated” and similar
phrases used in this Agreement refer to the termination of deliveries under this Agreement and related on-going rights and obligations,
and does not imply or mean a termination of rights, remedies, obligations and provisions which by their nature or as provided
elsewhere in the Agreement survive termination. Other terms used in this Agreement but not listed in this Article shall have meanings
as commonly used in the English language and, where applicable, in Prudent Utility Practice. Words not otherwise defined herein
that have well known and generally accepted technical or trade meanings are used herein in accordance with such recognized meanings. 



    	 28



     


    




   13.6.2          This
Agreement has been negotiated between unrelated parties who are sophisticated and knowledgeable in the matters contained in this
Agreement and who have acted in their own self-interest. In addition, each party has been represented by legal counsel. The provisions
of this Agreement shall be interpreted in a reasonable manner to effect the purposes of the parties, and this Agreement shall
not be interpreted or construed against any party to this Agreement because that party or any attorney or representative for that
party drafted this Agreement or participated in the drafting of this Agreement. 


 13.7          Binding
Effect; Limitation of Benefits. This Agreement shall be binding upon and shall insure to the benefit of the Parties hereto
and, subject to the provisions of Article 9 hereof, their successors and permitted assigns. Nothing in this Agreement is intended
to confer benefits, rights or remedies unto any Person other than the Parties and their permitted successors and assigns, and
no third party shall have the right to enforce the provisions of this Agreement. Duke Carolinas does not, nor should it be construed
to, extend its credit or financial support for the benefit of any third parties lending money to or having other transactions
with Seller. 


 13.8          Governing
Law. The validity, interpretation and performance of this Agreement and each of its provisions shall be governed by the
laws of the State of North Carolina, without giving effect to any choice of conflict of law provision or rule (whether of the
State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than
the State of North Carolina. 


 13.9          No
Partnership or Joint Venture. This Agreement is not intended to create nor shall it be construed to create any partnership
or joint venture relationship between Duke Carolinas and Seller, and neither Party hereto shall have the power to bind or obligate
the other Party. Neither Party hereto shall be liable for the payment or performance of any debts, obligations, or liabilities
of the other Party, unless expressly assumed in writing herein or otherwise. Each Party retains full control over the employment,
direction, compensation and discharge of its employees, and will be solely responsible for all compensation of such employees,
including social security, withholding and worker’s compensation responsibilities. 


 13.10          Headings.
The titles, headings and table of contents contained in this Agreement are inserted for convenience of reference only, shall
not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction
or scope of any of the provisions hereof. 


 13.11          Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under
the domestic laws of the State of North Carolina as provided herein, but if any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future Laws effective during the term hereof, then (a) in lieu of such illegal, invalid
or unenforceable provision, the Parties shall promptly endeavor, in good faith negotiations, to agree on a provision as may be
possible and be legal, valid and enforceable, provided that no Party shall be required to agree to any provision that would materially
alter any of its rights or obligations under this Agreement, and (b) the legality, validity and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired thereby. To the extent permitted by Law, each Party
hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect. 



    	 29



     


    




 13.12          Survival.
Any obligations, limitations, exclusions and duties which by their nature extend beyond the expiration or termination of this
Agreement, as well as any other provisions necessary to interpret the respective rights and obligations of the Parties hereunder,
shall survive the expiration or earlier termination of this Agreement. 


 13.13          Counterparts.
This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken
together shall constitute one single agreement between the Parties. 


 13.14          Notices. 


    13.14.1          Except
as set forth in Section 13.14.2, all notices, requests, statements or payments, if by check, shall be made to the addresses set
out below. Notices required to be in writing shall be delivered by letter, facsimile or other documentary form. Notice by facsimile
or hand delivery shall be deemed to have been received by the close of the Business Day during which the notice is received or
hand delivered. Notice by mail or overnight courier shall be deemed to have been received upon delivery as evidenced by the delivery
receipt. 


 To
Duke Carolinas: [] 


 To
Seller: [] 


    13.14.2          A
Party’s address or addressee to which notices or invoices shall be sent may be changed from time to time by such Party by
notice served as hereinabove provided. 


 [Signatures
Appear on the Following Page] 




    	 30



     


    

   


 IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the duly authorized representatives of Duke Carolinas and Seller
as of the date first written above. 


	 DUKE ENERGY CAROLINAS, LLC, 	   
	 a North Carolina Limited Liability Company 	   
	   	   
	 /s/ Duke Energy Carolinas, LLC 	   
	   	   
	 ORBIT ENERGY CHARLOTTE, LLC, 	   
	 a North Carolina Limited Liability Company 	   
	   	   
	 /s/ Orbit Energy Charlotte, LLC