EXECUTION VERSION





 





 


SOLAR SYSTEM INSTALLATION AGREEMENT


 


BY AND BETWEEN


 


NAUTILUS SOLAR LINDENWOLD BOE,
LLC,


  


as System Owner 


 

AND


 


CBD ENERGY LIMITED


  


as
Supplier


 


 


as of


 


July 6, 2012


 




    	 



    	 



    

 


SOLAR SYSTEM INSTALLATION AGREEMENT

TABLE OF CONTENTS


 


	 	 	Page
	 	 	 
	ARTICLE
    I SCOPE OF WORK; RELATIONSHIP OF PARTIES	1
	 	 	 
	Section
    1.1	Engagement; Scope of
    Work	1
	Section
    1.2	Relationship of the Parties	2
	 	 	 
	ARTICLE
    II DEFINITIONS; RULES OF INTERPRETATION	2
	 	 	 
	Section
    2.1	Definitions	2
	Section
    2.2	Interpretation	11
	 	 	 
	ARTICLE
    III LIMITED NOTICE TO PROCEED; NOTICE TO PROCEED	11
	 	 	 
	Section
    3.1	Limited Notice to Proceed
    with Engineering and Design	11
	Section
    3.2	Conditions to Notice
    to Proceed	12
	Section
    3.3	Waiver and Satisfaction
    of Conditions to Notice to Proceed	13
	Section
    3.4	Notice to Proceed	13
	 	 	 
	ARTICLE
    IV RESPONSIBILITIES OF SYSTEM OWNER	13
	 	 	 
	Section
    4.1	Cooperation for Government
    Approvals	13
	Section
    4.2	Location of and Access
    to the Site	13
	 	 	 
	ARTICLE
    V RESPONSIBILITIES OF SUPPLIER	14
	 	 	 
	Section
    5.1	Site Selection	14
	Section
    5.2	Site Preparation	14
	Section
    5.3	Site Conditions	14
	Section
    5.4	Commencement of the Work	15
	Section
    5.5	Work	15
	Section
    5.6	Construction Schedule
    and Status Reports	16
	Section
    5.7	Materials, Equipment
    and Services	16
	Section
    5.8	Supplier Government Approvals	17
	Section
    5.9	Conduct of the Work at
    the Site	17
	Section
    5.10	Compliance with Applicable
    Law	18
	Section
    5.11	Safety	18
	Section
    5.12	Government Approvals
    and Programs	18
	Section
    5.13	Environmental Credits	19
	Section
    5.14	Interconnection Facilities;
    Net Metering	20
	Section
    5.15	Performance and Payment
    Bond	20
	Section
    5.16	System Owner Supplied
    Equipment	20
	 	 	 
	ARTICLE
    VI SUBCONTRACTS	22
	 	 	 
	Section
    6.1	Subcontractors	22
	Section
    6.2	Subcontractor Information	22
	Section
    6.3	Supplier Responsible
    for Work	23
	Section
    6.4	Terms in Subcontracts	23
	 	 	 
	ARTICLE
    VII COMPLETION OF THE WORK	23
	 	 	 
	Section
    7.1	System Owner Access to
    System during Work	23
	Section
    7.2	Interconnection to BES	23
	Section
    7.3	Commissioning Tests	23
	Section
    7.4	Substantial Completion	24


 




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	Section
    7.5	Punchlist	25
	Section
    7.6	Certain Damages	25
	Section
    7.7	Final Completion	26
	 	 
	ARTICLE
    VIII WARRANTIES	26
	 	 	 
	Section
    8.1	Warranty	26
	Section
    8.2	Remedy for Nonconformance
    with Warranty	27
	Section
    8.3	Assignment of Subcontractor
    Warranties	28
	Section
    8.4	Exclusive Warranties	28
	Section
    8.5	Exclusions from Warranties	28
	 	 
	ARTICLE
    IX PRICING, PAYMENT AND CHANGE ORDERS	29
	 	 	 
	Section
    9.1	Contract Price	29
	Section
    9.2	Invoices and Payments	29
	Section
    9.3	Holdback	31
	Section
    9.4	Withholding Payment	31
	Section
    9.5	Change Orders Procedure	31
	 	 
	ARTICLE
    X LIENS AND CLAIMS	33
	 	 	 
	Section
    10.1	Waiver and Release of
    Liens	33
	 	 
	ARTICLE
    XI INSURANCE	34
	 	 	 
	Section
    11.1	Supplier’s Insurance	34
	Section
    11.2	Assignment of Proceeds	35
	Section
    11.3	Insurance Certificates	35
	Section
    11.4	System Owner Insurance	35
	 	 
	ARTICLE
    XII TITLE; RISK OF LOSS; INTELLECTUAL PROPERTY	36
	 	 	 
	Section
    12.1	Clear Title	36
	Section
    12.2	Supplier’s Drawings	36
	Section
    12.3	Risk of Loss	37
	Section
    12.4	Intellectual Property	37
	 	 	 
	ARTICLE
    XIII INDEMNIFICATION	37
	 	 	 
	Section
    13.1	Indemnification	37
	Section
    13.2	Liens and Claims	39
	 	 
	ARTICLE
    XIV LIABILITIES OF THE PARTIES	40
	 	 	 
	Section
    14.1	Waiver of Certain Damages	40
	Section
    14.2	Limitation of Liability	40
	 	 
	ARTICLE
    XV CONFIDENTIALITY	40
	 	 	 
	Section
    15.1	General	40
	Section
    15.2	Exceptions	41
	Section
    15.3	Publicity	42
	Section
    15.4	Required Disclosure	42
	 	 
	ARTICLE
    XVI SUSPENSION OF WORK	42
	 	 	 
	Section
    16.1	Suspension by System
    Owner	42
	Section
    16.2	Suspension by Supplier	42
	Section
    16.3	Effects of Suspension	43


 




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	ARTICLE XVII TERMINATION	43
	 	 
	Section
    17.1	Termination
    By System Owner	43
	Section
    17.2	Termination By Supplier	44
	Section
    17.3	Effect of Termination	45
	 	 
	ARTICLE
    XVIII FORCE MAJEURE	45
	 	 
	Section
    18.1	Force Majeure Event	45
	Section
    18.2	Termination for Extended
    Force Majeure	46
	 	 
	ARTICLE
    XIX DISPUTE RESOLUTION	46
	 	 	 
	Section
    19.1	Amicable Settlement	46
	Section
    19.2	Mediation	46
	Section
    19.3	Arbitration	46
	 	 
	ARTICLE
    XX MISCELLANEOUS	47
	 	 	 
	Section
    20.1	Record Retention	47
	Section
    20.2	Assignment	48
	Section
    20.3	Financing	48
	Section
    20.4	Third Party Beneficiaries	49
	Section
    20.5	Amendments and Modifications	49
	Section
    20.6	Survival	49
	Section
    20.7	No Waiver	49
	Section
    20.8	Notices	49
	Section
    20.9	Invalidity	50
	Section
    20.10	Further Assurances	50
	Section
    20.11	Remedies	50
	Section
    20.12	Expenses	51
	Section
    20.13	Good Faith	51
	Section
    20.14	Governing Law	51
	Section
    20.15	Captions	51
	Section
    20.16	Counterpart Execution	51
	Section
    20.17	Entire Agreement	51
	Section
    20.18	Time	51


 


	Exhibit A	Description of Premises and Sites
	Exhibit B	Specifications
	Exhibit C	Supplier Licenses and Registrations
	Exhibit D	Bill of Sale
	Exhibit E	Government Approvals
	Exhibit F	Form of Site Suitability Notice
	Exhibit G	Construction Schedule
	Exhibit H	Monthly Status Reports
	Exhibit I	Performance and Payment Bond
	Exhibit J	Form of Commissioning Protocols
	Exhibit K	Solar Panel and Inverter Warranties
	Exhibit L	Contract Price, Payment Schedule and Requirements for Each Milestone Payment
	Exhibit M	Form of Invoice
	Exhibit N	Form of Affidavit and Lien Waiver
	Exhibit O	Liquidated Damages Schedule
	Exhibit P	Supplier Responsibilities - Approvals, Permits, Licenses and Authorizations
	Exhibit Q	ITC Cash Grant Requirements
	Exhibit R	Form of System Owner Supplied Equipment Contract Conformity Notice


 




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SOLAR SYSTEM INSTALLATION AGREEMENT


 


This Solar System
Installation Agreement (“Agreement”) is made and entered into as of July 6, 2012 (the “Effective Date”),
by and between Nautilus Solar Lindenwold BOE, LLC, a Delaware limited liability company (“System Owner”), and
CBD Energy Limited an Australia corporation (“Supplier”). Each of System Owner and Supplier shall be referred
to herein as a “Party” and collectively as the “Parties.”


 


RECITALS


 


WHEREAS, System
Owner has contracted with Lindenwold Board of Education (“Host Customer”) for the purposes of installing, operating,
maintaining and repairing the System (as defined below) and the sale of Electricity (as defined below) generated by the System
from System Owner to Host Customer; and


 


WHEREAS,
Supplier desires to provide and System Owner desires to obtain engineering, procurement, installation and related services for
the System to be located on the Premises (as defined below) on a date certain, lump-sum, fixed-price per watt, turnkey basis, for
the Contract Price (as defined below) and in accordance with the terms and conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:


 


ARTICLE I

SCOPE OF WORK; RELATIONSHIP OF PARTIES


 


Section 1.1           Engagement;
Scope of Work.


 


Section
1.1.1           Engagement. System Owner hereby engages
Supplier to perform the Work and reach Final Completion by a date certain, on a lump-sum, fixed price per watt, turnkey
basis, for the Contract Price and in accordance with the terms and conditions of this Agreement, including the Specifications
attached as Exhibit B. Supplier hereby accepts such engagement.


 


Section
1.1.2           Turnkey Project. The Parties agree that this
Agreement is a turnkey contract and Supplier’s obligation is to provide System Owner with a fully operational System
meeting the Specifications (as defined below) for the Contract Price and completed in accordance with the terms of this
Agreement. System Owner is relying upon the expertise of Supplier to furnish a completed System in accordance with the terms
of this Agreement, and Supplier acknowledges System Owner’s reliance thereupon.


 


Section
1.1.3           Site Investigation. As of the Effective Date,
Supplier shall have carefully examined the Specifications and the Premises, and from Supplier’s own investigation,
Supplier shall have satisfied itself as to the nature, location and conditions of the Work (as defined below) and all matters
that may in any way affect the Work; and as a result of such examination and investigation, Supplier fully understands the
intent, purpose and extent of the Work. In addition, Supplier shall have satisfied itself that the BES is safe and adequate
to support the System, and by execution of this Agreement shall be deemed to have provided notice to System Owner of the
same. In Supplier’s investigation of the Site, Supplier shall exercise due diligence that would be reasonably expected
of a contractor experienced in installations similar to the Installation.


 




    	 



    	 



    

 


Section 1.2           Relationship
of the Parties.


 


Section 1.2.1           Independent
Contractor.


 


(a)          General.
Supplier is an independent contractor, and nothing contained herein shall be construed as creating (i) any relationship between
System Owner and Supplier other than that of owner and independent contractor or (ii) any relationship whatsoever between System
Owner and Supplier’s employees or Subcontractors. Neither Supplier, nor any of its employees, are or shall be deemed to
be employees of System Owner. For all purposes herein, references to Supplier’s employees or to any Subcontractor’s
employees shall be deemed to include any individuals hired as independent contractors or temporary laborers by Supplier or any
such Subcontractor.


 


(b)          Supplier
Employees. Without limitation of Section 5.9.3, Supplier has sole authority and responsibility to employ, discharge and otherwise
control its employees.


 


(c)          Responsibility
for Subcontractors. Pursuant to the provisions of this Agreement, Supplier accepts complete responsibility for the acts or
omissions of its agents, Subcontractors and all others it hires, engages, or contracts with to perform or assist in the performance
of the Work.


 


Section 1.2.2           System
Owner Not Responsible for Acts of Supplier. System Owner shall not be responsible for Supplier’s failure to carry out
the Work in accordance with this Agreement. System Owner shall not be responsible for and will not have control over, or charge
of, the means, methods, techniques, sequences or procedures, or safety precautions and programs in connection with the Work. System
Owner will not be responsible for or have control over the acts or omissions of Supplier, any Subcontractor or any of their agents
or employees, or any other Persons (as defined below) performing any portion of the Work or providing or supplying any portion
of the System. No inspection, or failure to inspect, by System Owner shall be deemed a waiver of Supplier’s obligations under
this Agreement, or be construed as approval or acceptance of the Work or any part thereof.


 


ARTICLE II

DEFINITIONS; RULES OF INTERPRETATION


 


Section 2.1           Definitions.


 


“Affiliate”
means a person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control
with another person.


 


“Agreement”
means this Solar System Installation Agreement by and between System Owner and Supplier.


 


“ARRA” means the American Recovery
and Reinvestment Act of 2009.


 




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“BES”
means Host Customer’s existing building electrical systems that are owned or leased, operated, maintained and controlled
by Host Customer, and which systems are interconnected with the Host Utility. Notwithstanding anything to the contrary in this
Agreement, Supplier shall provide commercially reasonable advanced notice to System Owner in the event at any time it reasonably
believes the BES to be unsafe.


 


“Business Day” means
any day other than Saturday, Sunday, or a day on which the Federal Reserve Bank is authorized or required to be closed.


 


“Change” has the meaning
established in Section 9.5.1.


 


“Change Order”
means a written order issued in accordance with the provisions of Section 9.5, signed by System Owner and Supplier, authorizing
additions, deletions or revisions to the Work and, if applicable, authorizing (a) additional amounts to be paid to Supplier or
a reduction in the Contract Price or (b) changes to the Construction Schedule and as set forth in Section 9.5.1.


 


“Claims” has the meaning
established in Section 13.1.1.


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Commencement Date”
means the date in the Notice to Proceed upon which Supplier is authorized to commence performing the Work, as established in Section
3.4.2.


 


“Commissioning Report”
has the meaning established in the definition of Substantial Completion in this Article II.


 


“Commissioning Tests”
shall mean those tests necessary to prove the capability of the System as set forth in Exhibit J.


 


“Conditions to Notice to Proceed”
has the meaning established in Section 3.2.


 


“Construction Schedule”
means Supplier’s schedule for performance of the Work through Final Completion, as set forth in Exhibit G.


 


“Contract Price” has
the meaning established in Section 9.1.


 


“Defects”
means, unless otherwise specifically stated, any design, engineering, material, tools, installations or other Work which does
not conform to the Specifications or the Warranties in any material respect or is of improper or inferior workmanship.


 


“Delivery
Point” means the physical location at which each Installation connects to the BES.


 


“Design Work Product”
has the meaning established in Section 5.5.2.


 


“Effective Date” has
the meaning established in the introductory paragraph.


 


“Electricity” means
electrical energy.


 




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“Eligible
Costs” means expenditures entitled to be included in the basis (or cost) of property eligible for a cash grant as described
in the Treasury Guidance, as supplemented by related rules in the Code, including Sections 263 and 263A of the Code, and Treasury
Regulations, including Treasury Regulations sections 1.46-3, 1.263A-1, 1.263A-8 and 1.266-1.


 


“Environmental
Credits” means any and all mandatory and voluntary federal, state or local renewable energy or emissions credits, rebates,
subsidy, incentive payment or any other green tag, renewable energy, emissions reduction, depreciation, tax credit or other benefit
related to the environmental characteristics of the System, whether related to any renewable portfolio standard or other renewable
energy purchase requirement or otherwise, whether existing as of the Effective Date or enacted thereafter and whether available
to Supplier, to System Owner as producer of Output or available to Host Customer as the host, purchaser or user of Output, including
renewable energy certificates (or comparable credit or certificates) and SRECs in New Jersey, whether or not pursuant to the New
Jersey Clean Energy Program, the ITC or the ITC Cash Grant.


 


“Expected Output” means
the amount of Output (in kWh) to be produced by the System, based on the PVSYST data set forth in Exhibit B hereto.


 


“Final Completion” means
all of the following conditions shall have been satisfied (or otherwise have been waived by System Owner in writing):


 


(a)          all
of the conditions for Substantial Completion shall have been, and shall continue to be, satisfied;


 


(b)          Supplier’s
completion of 100% of the Work, including completion of any undisputed items on the Punchlist; provided that this clause (b) shall
not be deemed met if the value of any disputed items on the Punchlist exceeds $25,000; and


 


(c)          following
Substantial Completion, the System has produced aggregate Output during a thirty (30) day period of at least 90% of the Expected
Output.


 


“Final Completion Review Period”
has the meaning established in Section 7.7.2.


 


“Final Payment” means
the final payment installment of the Contract Price to be made upon Final Completion, pursuant to Exhibit L.


 


“Force Majeure
Event” means any circumstance not within the reasonable control, directly or indirectly, of the Party affected, but
only if and to the extent that (a) such circumstance, despite the exercise of due diligence, cannot be or be caused to be prevented,
avoided or removed by such Party, (b) such event is not due to such Party’s negligence, recklessness or intentional misconduct,
(c) such event is not the result of any failure of such Party to perform any of its obligations under this Agreement, (d) such
Party has taken all reasonable precautions, due care, and reasonable alternative measures to avoid the effect of such event and
(e) such Party has given the other Party prompt notice (and not more than five (5) days following the occurrence of such event)
describing such event, the effect thereof and the actions being taken to comply with this Agreement. Subject to the foregoing
conditions, Force Majeure Events may include: strikes or other labor disputes, other than strikes or labor disputes solely by
employees of the Party declaring the Force Majeure Event or as a result of such Party’s failure to comply with a collective
bargaining agreement; and riot or civil unrest; provided, that Force Majeure Events shall not include (x) any inability to make
any payments that are due hereunder or to any third party or to procure insurance required to be procured hereunder and shall
not include, (y) any permitting delays (other than (i) so long as the conditions in clauses (a) through (e) above are met, any
permitting delays resulting from delay by a Governmental Authority or (ii) permitting delays to the extent resulting from an event
that would qualify as a Force Majeure Event) or (z) any Subcontractor delay (unless such Subcontractor delay is due to a Force
Majeure Event).


 




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“Government
Approval” means any authorization, consent, approval, license, ruling, permit, tariff, certification, exemption, filing,
variance, order, judgment, decree, qualification requirements of, declaration or publication of, notice to, or registration by
or with any Governmental Authority relating to the design, engineering, procurement, construction, Start-Up, testing, completion
or operation of the System prior to Final Completion.


 


“Governmental
Authority” means any federal, national, state, municipal, local, territorial, or other governmental department, commission,
board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, and any arbitral tribunal having
authority over System Owner, Supplier, Host Customer, the System, the Work, or the Site, including, the Internal Revenue Service,
and the New Jersey Board of Public Utilities.


 


“Guaranteed Substantial Completion
Date” means November 15, 2012.


 


“Host Customer” has
the meaning established in the recitals.


 


“Host Utility”
means the electric distribution company serving or connected to the Host Customer.


 


“Host
Utility Documents” means, to the extent applicable, the application to the Host Utility for, agreement with the Host
Utility with respect to, or other documentation submitted to or received from the Host Utility with respect to, net metering, interconnection
and such other arrangements related to the System.


 


“Indemnifying Party”
means the Party providing indemnification of a Claim pursuant to Section 13.1.


 


“Indemnitee” means a
Person seeking to be indemnified pursuant to Section 13.1.


 


“Independent Engineer”
means the Person(s) appointed by System Owner to act as a consulting engineer on behalf of System Owner.


 


“Installation” means
each of the separately located photovoltaic electric generating systems on the Site, as described in Exhibit A, which together
are part of the System.


 


“ITC” means the federal
tax credit available in respect of solar energy property as provided in Section 48 of the United States Internal Revenue Code
of 1986, as amended.


 




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“ITC Cash Grant”
means the cash grant provided by the U.S. Department of the Treasury under Section 1603 of division B of the American Recovery
and Reinvestment Act of 2009.


 


“ITC Cash Grant Requirements”
means the obligation of Supplier to comply with the requirements of the Treasury Guidance.


 


“Law”
means (a) any statute, law, rule, regulation, code, ordinance, judgment, decree, writ, order, concession, grant, franchise, license,
agreement, directive, guideline, policy, requirement, or other governmental restriction of, or any binding interpretation or administration
of any of the foregoing by, any Governmental Authority, whether now or hereafter in effect or (b) any requirements or conditions
on or with respect to the issuance, maintenance or renewal of any Government Approval or applications therefor, whether now or
hereafter in effect through the date on which Final Completion is achieved.


 


“Lenders”
means, with respect to any Person, the banks, financial institutions or other institutional investors providing financing for the
System (including lease financing) and any trustee or agent acting on any such Person’s behalf.


 


“Major
Subcontract” means any Subcontract (a) for engineering or design services or (b) that individually, or when taken together
with all Subcontracts with an individual Subcontractor, has a value of 10% or more of the Contract Price, or (c) that is entered
into with the sole supplier able to deliver any equipment or materials to be supplied hereunder to enable Supplier to meet the
Guaranteed Substantial Completion Date.


 


“Major Subcontractor” means the
Subcontractor under any Major Subcontract.


 


“Meter”
means the standard instrument(s) and equipment installed at the Site by Supplier as part of the System used to measure and record
the Output delivered to the Host Customer at each Delivery Point.


 


“Notice to Complete” has the meaning
established in Section 7.4.4.


 


“Notice to Proceed” has the meaning
established in Section 3.4.1.


 


“Notice of Final Completion” has
the meaning established in Section 7.7.1.


 


“Notice of Substantial Completion” has the meaning established in
Section 7.4.1.


 


“Output” means
the Electricity produced by the System delivered by System Owner to Host Customer at each Delivery Point.


 


“Party” or “Parties”
has the meaning established in the introductory paragraph.


 


“Performance and Payment Bond” has the meaning established
in Section 5.15.


 


“Performance and Payment
Bond Issuer” means the surety company, which must have and maintain an A.M. Best rating of A or better and be authorized
to do business in the state in which the System is located, which issues the Performance and Payment Bond in accordance with this
Agreement.


 




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


 


“Premises” means Host Customer’s
property, as described in Exhibit A.


 


“Prime
Rate” means, for any day, the “PRIME RATE” as published from time to time in “The Money Rates”
Section of The Wall Street Journal (U.S. Edition), as such “PRIME RATE” may change from time to time. In the
event The Wall Street Journal ceases to publish the “PRIME RATE,” then the Parties shall agree as to a substitute
reference which represents the base rate on corporate loans posted by major banks having one or more lending offices in New York,
New York.





 


“Professional Engineer”
and “P.E.” mean an engineer certified
in the state in which the Work is being performed.


 


“Proprietary Property” has the
meaning established in Section 12.4.1.


 


“Prudent
Industry Practice” means the practices, methods and acts engaged in or approved by a significant portion of the solar
energy industry and, to the extent applicable, the electric generation industry that, at a particular time, in the exercise of
reasonable judgment in light of the facts known or that reasonably should have been known at the time a decision was made, would
have been expected to accomplish the desired result in a manner consistent with Law, reliability, safety, environmental protection,
economy and expedition. If disputed, then the Parties shall consult with BEW Engineering, Inc., located in San Ramon, California
(“BEW”), which shall make the final determination as to whether the particular practice, method or act in question
constitutes “Prudent Industry Practice”; provided, however, (i) in the event either Party wishes to
dispute BEW’s final determination in accordance with the mediation or arbitration proceedings set forth in Sections 19.2
or 19.3 hereof, then in such event, BEW’s final determination shall not bind the applicable mediator(s) or arbitrator(s)
who conducts such proceedings, and (ii) notwithstanding anything in this Agreement to the contrary, if neither Party notifies
the other Party in writing of its intent to dispute BEW’s final determination within fifteen (15) days after BEW makes such
final determination, then BEW’s final determination shall be final, binding and non-appealable. If BEW or a successor to
BEW does not exist at the time of such dispute then the Parties shall reasonably agree on an engineer reasonably experienced with
solar projects similar to the System in the determination of the dispute.


 


“Punchlist” has the meaning established
in Section 7.5.


 


“Site” means the areas
on the Premises on which the Supplier will install the System, as described in Exhibit A.


 


“Site Suitability Notice”
has the meaning established in Section 3.1.2.


 


“Solar Electricity Price”
has the meaning established in Section 8.2.1.


 




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“Solar Energy Agreement” has the
meaning established in Section 3.1.1.


 


“Solar Panel Manufacturer”
means the manufacturer of solar panels to be used in the System, as identified in the Specifications.


 


“Specifications”
means the design, technical specifications and criteria with respect to the System, the Work and the performance thereof that
is attached hereto as Exhibit B and in accordance with Exhibit A, as each may be amended from time to time by mutual
written agreement of the Parties.


 


“SREC” means a New Jersey–eligible
Solar Renewable Energy Certificate as defined in N.J. Stat. §§ 48:3-5 1 and 14:8-2.2.


 


“Start-Up”
means the pre-commissioning, commissioning, synchronization to the BES and associated testing of the System.


 


“Subcontract”
means any agreement whereby a Subcontractor undertakes (a) to perform or provide any portion of the Work or (b) to provide all
or a portion of the System required by any Person performing or providing any portion of the Work.


 


“Subcontractor”
shall mean each direct or indirect subcontractor or supplier of Supplier with respect to the System or otherwise in connection
with the Work.


 


“Substantial Completion”
means, as certified by Supplier to System Owner pursuant to the Notice of Substantial Completion and accepted by System Owner:


 


(a)          Supplier’s
completion of the Work at the Site, except for Punchlist items;


 


(b)          successful
completion of the Commissioning Tests and Start-Up, as approved by the Independent Engineer;


 


(c)          delivery
of a report, substantially in the form attached hereto as Exhibit J, that the System has successfully completed the Commissioning
Tests (the “Commissioning Report”);


 


(d)          delivery
of as-built drawings of the System and as-built details of materials and equipment comprising the System signed and sealed by a
Professional Engineer;


 


(e)          delivery
of all lien waivers from Supplier and Subcontractors, substantially in the form attached hereto as Exhibit N, that the
System and the Premises are not subject to any mechanics’ lien, mechanics’ lien affidavit or other claim or encumbrance
in the nature of a lien;


 


(f)          assignment
of all Subcontractor and manufacturer’s warranties, including for System materials and equipment, as provided in Section
8.3;


 




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(g)          transfer
of custody and control (but not title, which shall pass in accordance with Section 12.1.2) of the System to System Owner;


 


(h)          delivery
of the documents set forth in Section 12.1.4 and all applicable Government Approvals (other than the New Jersey Clean Energy Program
approvals) and Host Utility Documents;


 


(i)          delivery
of 24-hour data at one minute intervals including power, irradiance, ambient temperature and module temperature; and


 


(j)          receipt
of all New Jersey Clean Energy Program approvals, including final approval and registration of the System to generate SRECs.


 


“Substantial Completion Payment”
has the meaning established in Exhibit L. 


 


“Substantial Completion Review Period”
has the meaning established in Section 7.4.2.


 


“Supplier”
has the meaning established in the introductory paragraph.


 


“Supplier Indemnitees” has the
meaning established in Section 13.1.2.


 


“Suspension Amount Cap” has the
meaning established in Section 16.3.1.


 


“Suspension Notice” has the meaning
established in Section 16.1.


 


“Suspension Period” has the meaning
established in Section 16.1.


 


“System”
means all equipment, facilities and materials, including apparatus, machinery, parts, Start-Up spares, special maintenance tools,
components, appliances, interconnection and transmission equipment from the System to the BES, photovoltaic arrays, DC/AC inverters,
wiring, Meters, monitoring software, tools, and any other property installed by Supplier as part of the Work prior to System Owner’s
acceptance of Final Completion or pursuant to Article VII, for the purpose of, or incidental or useful to maintaining the use of
the System and providing Output to Host Customer at each Delivery Point. The System is described more specifically in the Specifications;
provided, that the System excludes any part of the BES after the Delivery Point. For the avoidance of doubt, the System
includes the System Owner Supplied Equipment.


 


“System
Manuals” means all equipment and materials manuals, System descriptions, System operating instructions, equipment and
materials maintenance instructions and pertinent design documentation related to the System.


 


“System Owner” has the meaning
established in the introductory paragraph.


 


“System Owner Indemnitees” has the meaning established in Section
13.1.1.


 


“System Owner Supplied
Equipment” means any equipment that is the subject matter of any System Owner Supplied Equipment Contracts.


 




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“System
Owner Supplied Equipment Contracts” means any sales contract between System Owner and one or more counterparties and
any related purchase orders and procurement documents for any equipment that shall become part of the System.


 


“Taxes”
means any and all license, documentation, recording and registration fees, and all taxes (including income, gross receipts, sales,
use, personal property (tangible and intangible), real estate, excise and stamp taxes), levies, imposts, duties, assessments, fees,
charges, and withholdings of any nature whatsoever, whether or not presently in existence, together with any penalties, fines,
additions to tax, or interest thereon, imposed by any Governmental Authority.


 


“Treasury
Guidance” means the U.S. Treasury Department’s program guidance publication entitled “Payments for Specific
Energy Property in Lieu of Tax Credits under the American Recovery and Reinvestment Act of 2009,” dated July 2009 and as
revised March 2010 and April 2011, the Frequently Asked Questions and Answers issued by the U.S. Treasury Department in respect
thereof, and any other guidance, instructions, regulations or terms and conditions published or issued by the U.S. Treasury Department
in respect of the ITC Cash Grant or any application therefor.


 


“Warranty” has the meaning established
in Section 8.2.


 


“Warranty
Period” means the period of time during which the Warranty is in effect. The Warranty Period shall begin on the date
of Final Completion and shall continue for 60 months in accordance with all applicable New Jersey Board of Public Utilities requirements
as published on or before the Effective Date; provided, such Warranty Period may be extended as set forth in Section 8.2.


 


“Work”
means all acts required for the design, procurement, engineering, construction, Start-Up, performance of Commissioning Tests, and
completion of the System as more fully described in the Specifications. Without limitation of the foregoing, the Work includes
(a) selection and preparation of the Site necessary for construction of the System, including any required roof or Site preparation,
(b) delivering P.E. signed and sealed drawings (c) placing of purchase order for, and procuring, components of the System (except
for the System Owner Supplied Equipment); (d) supply and installation of the System; (e) assisting Host Customer with net metering
arrangements with the Host Utility; (f) interconnection of the System with the BES, including provision of necessary interconnection
equipment, (g) Start-Up and completion of the Commissioning Tests of the System, including (i) satisfaction of all requirements
necessary to obtain the full Environmental Credits; (ii) scheduling and passing all inspections required by the New Jersey Board
of Public Utilities to be eligible for Environmental Credits; (iii) obtaining all inspections, permits and approvals and submitting
and processing all applications associated with registering and having the System become eligible to generate SRECs pursuant to
the New Jersey Clean Energy Program; and (iv) providing System Owner all documentation, certifications or other evidence required
to qualify for and claim, and otherwise cooperate with System Owner in qualifying for and claiming the ITC or the ITC Cash Grant
with respect to the System; and (h) obtaining on behalf of System Owner all Government Approvals for the System, except for any
approvals System Owner or Host Customer must obtain, in which case Supplier shall assist System Owner in obtaining such Government
Approvals.


 




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Section 2.2           Interpretation.


 


In this
Agreement, unless the context requires otherwise, the singular includes the plural and the plural the singular, words importing
any gender include the other gender; references to statutes, sections or regulations are to be construed as including all statutory
or regulatory provisions consolidating, amending, replacing, succeeding or supplementing the statute, section or regulation referred
to; the words “including,” “includes” and “include” shall be deemed to be followed by the words
“without limitation” or “but not limited to” or words of similar import; the word “or” shall
be interpreted to mean “and/or” rather than “either/or”; references to Articles, Sections (or subdivisions
of Sections), Exhibits, Annexes or Schedules are to those of this Agreement unless otherwise indicated; references to agreements
and other contractual instruments shall be deemed to include all exhibits and appendices attached thereto and all subsequent amendments
and other modifications to such instruments, and references to Persons include their respective successors and permitted assigns.


 


ARTICLE III

LIMITED NOTICE TO PROCEED; NOTICE TO PROCEED


 


Section 3.1           Limited
Notice to Proceed with Engineering and Design.


 


Section 3.1.1           Prior
to or contemporaneous with the execution and delivery of this Agreement by the Parties, (a) System Owner has entered into a binding
Solar Energy Agreement with Host Customer (the “Solar Energy Agreement”), (b) Supplier has conducted the Site
investigation as set forth in Section 1.1.3, and has provided notice to System Owner that the BES is safe and adequate to support
the System, and (c) Supplier has delivered to System Owner the following documents: (i) the insurance certificates as required
in Article XI, (ii) the licenses and registrations listed in Exhibit C, (iii) a fully executed and assignable Bill of Sale
for the System (and any materials and equipment provided by Supplier as part of the System) in the form of Exhibit D, to
be held in escrow by System Owner, which Bill of Sale shall be released out of escrow to System Owner or its designee upon Substantial
Completion or the earlier termination of this Agreement, (iv) a fully executed and assignable lien waiver in the form of the “conditional
waiver and release upon progress payment” provided in Exhibit N, to be held in escrow by System Owner, which lien
waiver shall be released out of escrow to System Owner or its designee upon Substantial Completion Payment or the earlier termination
of this Agreement, subject to Section 17.2.4(d), and (v) a fully executed and assignable lien waiver in the form of the “unconditional
waiver and release upon final payment” provided in Exhibit N as described in Section 9.2.3(c), to be held in escrow
by System Owner, which lien waiver shall be released out of escrow to System Owner or its designee upon Final Payment or the earlier
termination of this Agreement, subject to Section 17.2.4(d).


 




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Section 3.1.2           Within
ten (10) days of the execution and delivery of this Agreement, Supplier shall conduct the Site selection and inspection as set
forth in Sections 5.1 and 5.3 (including the structural analysis of the roof to support the System and the geotechnical investigation)
and shall deliver notice in the form attached hereto as Exhibit F (such notice the “Site Suitability Notice”)
to System Owner that the Site selected is suitable as required therein. Timely delivery of the Site Suitability Notice is of the
essence. Delivery by Supplier of a Site Suitability Notice stating that the Supplier has determined that the Site is suitable
for the performance of the Work and the operation of the System as required in Sections 5.1 and 5.3 is a condition precedent to
System Owner’s obligations under this Agreement. The satisfaction of the items listed in Section 3.1.1(a) through (c), together
with delivery of the Site Suitability Notice stating that the Supplier has determined that the Site is suitable for the performance
of the Work and the operation of the System as required in Sections 5.1 and 5.3, shall be deemed a limited notice to proceed.
Upon such limited notice to proceed, Supplier shall commence preparation of the Design Work Product necessary to permit, procure,
construct, install and deliver to System Owner the System meeting the Specifications set forth herein. Supplier shall deliver
such completed Design Work Product to System Owner for review pursuant to Section 5.5.2, in accordance with the Construction Schedule.


 


Section 3.2           Conditions
to Notice to Proceed.


 


Subject to the terms
and conditions of this Agreement, each of the following conditions (collectively, the “Conditions to Notice to Proceed”)
shall be satisfied or waived by the applicable Party prior to the issuance of the Notice to Proceed under this Agreement:


 


Section 3.2.1           Financing.


 


One or more third-party
Lenders shall have delivered to System Owner a financing commitment or commitments in respect of the System on terms acceptable
to System Owner, in its sole discretion.


 


Section 3.2.2           Government
Approvals; Host Utility Documents.


 


Supplier shall have
obtained the Government Approvals designated as items 1, 2, 4 and 5 on the list of all Government Approvals set forth in Exhibit
E, including the Acceptance Letter indicating a valid commitment reasonably satisfactory to System Owner that the System will
be eligible for and shall receive the benefit of the Environmental Credits, and such Government Approvals shall be in full force
and effect; provided that Supplier shall not apply for such Government Approvals until such time as System Owner has approved
the engineering design of the System as submitted to System Owner by Supplier pursuant to Section 3.2.3. Host Utility shall have
issued or otherwise delivered to Supplier the Host Utility Documents, including notification that the interconnection of the System
will be finally approved pursuant to New Jersey Administrative Code Title 14, Chapter 8, Subchapter 5.5, in each case, necessary
for the engineering, procurement, installation and operation of the System, as contemplated by Sections 5.12.1 and 5.14.2, respectively.
All Government Approvals and Host Utility Documents obtained pursuant to this Section 3.2.2 shall be obtained on behalf of and
in the name of System Owner.


 


Section 3.2.3           Detailed
Design and Engineering.


 


Supplier shall have
submitted to System Owner and System Owner shall have approved the Design Work Product in accordance with the Construction Schedule,
as contemplated by Sections 3.1.2 and 5.5.2.


 




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Section 3.3           Waiver
and Satisfaction of Conditions to Notice to Proceed.


 


Section
3.3.1           The Conditions to Notice to Proceed described in
Sections 3.2.1 and 3.2.3 may be waived only by System Owner. The Conditions to Notice to Proceed described in Section 3.2.2
may be waived only by both Parties.


 


Section
3.3.2           Each Party shall use commercially reasonable efforts
to satisfy the Conditions to Notice to Proceed. Without limiting the generality of the foregoing, System Owner shall use
commercially reasonable efforts to take all actions, and to do all things, including filing the appropriate applications,
that are required in order to obtain a financing commitment or commitments from one or more third-party Lenders on terms
acceptable to System Owner, in its sole discretion, and Supplier shall take all actions, and do all things, including filing
the appropriate applications, that are required in order to obtain the Government Approvals, the Host Utility Documents and
the commitment that the System will be eligible for and receive the benefit of the Environmental Credits. Each Party shall
keep the other Party apprised as to its progress toward satisfying the Conditions to Notice to Proceed and any potential
delays.


 


Section 3.4           Notice
to Proceed.


 


Section 3.4.1           No
later than ten (10) Business Days after completion or waiver by the applicable Party or Parties of all Conditions to Notice to
Proceed pursuant to Article III, System Owner shall issue a notice to proceed to Supplier, notifying Supplier that it may commence
performing the Work (the “Notice to Proceed”).


 


Section
3.4.2           The Notice to Proceed shall specify the date (the
“Commencement Date”) on which Supplier is to commence performing the Work, which shall be no sooner than one (1)
Business Day after System Owner’s issuance of the Notice to Proceed.


 


ARTICLE IV

RESPONSIBILITIES OF SYSTEM OWNER


 


Section 4.1           Cooperation
for Government Approvals.


 


System Owner will
cooperate with Supplier in obtaining, pursuant to Section 5.12, all requisite licenses, permits and approvals necessary for engineering,
procurement, installation and operation of the System. System Owner agrees that, upon reasonable request of Supplier, it shall
coordinate with Host Customer and Supplier in obtaining such Government Approvals.


 


Section 4.2           Location
of and Access to the Site.


 


Section
4.2.1           System Owner shall arrange with Host Customer to
provide reasonable, non-exclusive rights of ingress and egress for Supplier and all Subcontractors, in accordance with the
Construction Schedule, to and from (a) the Site and (b) the installation laydown areas. Upon Supplier’s reasonable
request, System Owner shall cooperate with and support Supplier in making any additional access arrangements with
Host Customer.


 




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ARTICLE V


RESPONSIBILITIES OF SUPPLIER


 


Section
5.1           Site Selection.


 


Section
5.1.1           The Parties acknowledge that there shall be multiple
Installations at various areas on the Premises. Supplier shall be solely responsible for selecting each appropriate area for
the System in coordination with and with the approval of the Host Customer, in strict compliance with all applicable Laws and
Prudent Industry Practices, and in accordance with this Agreement, which areas together shall constitute the Site.


 


Section
5.1.2           Supplier has been solely responsible for investigating
the Site pursuant to Section 1.1.3 prior to the Effective Date, and is solely responsible for inspecting the Site prior to
the issuance of the limited notice to proceed pursuant to Section 3.1.2 to determine that the Premises and the Site are
suitable and acceptable for the installation, operation and maintenance of the System and without need of repair, including
the ability of the roof or roofs comprising all or part of the Site to support the System, such that, following completion of
the Work, the System will be able to operate on the roof or roofs as required by this Agreement for the useful life of the
System, and the roof warranty will remain in full force and effect.


 


Section 5.2           Site
Preparation.


 


Supplier shall be solely responsible for
preparing the Site for the installation of the System, including any applicable roof or Site preparation.


 


Section 5.3           Site
Conditions.


 


Section
5.3.1           Within the time period specified in Section 3.1.2,
Supplier shall have inspected and satisfied itself as to all matters affecting the Site, including that the site meets the
conditions specified in Section 5.1, access to the Site, adequacy of laydown or staging areas, geotechnical conditions (if
applicable) and obstructions. Supplier shall assume the cost and risk of all conditions at the Site as and to the extent that
such conditions may affect the Work or the operation of the System in accordance with the Specifications, other than (a)
hazardous or environmental contamination caused by System Owner, Host Customer or another third party (other than any
Subcontractors) or (b) subsurface or other conditions that could not have reasonably been known by Supplier without
destructive inspection prior to the Commencement Date.


 


Section
5.3.2           Supplier will take reasonable measures to reduce or
mitigate noise, dust, the spread of debris and construction materials during construction of the System. Supplier shall not
allow waste materials or rubbish resulting from the construction of the System to accumulate at any areas where Work is being
performed and shall maintain the Premises in a manner acceptable to Host Customer and suitable for Host Customer’s
ongoing operations. Supplier shall perform all necessary daily cleanup and shall leave the Work areas “broom
clean” at the end of each workday. Prior to or upon Final Completion, Supplier shall remove from the Premises all
debris, extra materials, scaffolding, tools, machinery and other construction materials not constituting part of the
completed System, to leave the Work areas clean and ready for use, and in substantially the same condition as before
performance commenced under this Agreement, subject to the actual installation of the System and reasonable wear and tear.
Any costs incurred by System Owner in cleaning Supplier’s Work areas or staging or laydown areas shall be deducted from
any amounts due Supplier hereunder. Supplier shall use and dispose of any “hazardous materials” (as such term is
defined in any applicable Laws), if any, brought to the Site or the Premises in connection with the construction and
installation of the System in accordance with all applicable Laws.


 






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Section
5.3.3           In the event that Supplier discovers any such
hazardous materials existing on the Premises that Supplier reasonably believes may require removal or remediation, or that
otherwise impairs or prevents the construction and installation of the System, Supplier shall promptly notify System Owner,
and Supplier shall suspend construction of the System until such time as the hazardous substance has been removed and the
Premises remediated, or it has been determined that no such remediation is required, and any costs and delays related to such
suspension shall be subject to Section 16.3 , so long as neither Supplier nor any of its Subcontractors brought such
hazardous materials to the Premises. Supplier shall have no responsibility or liability in respect of hazardous
material existing at the Premises (other than any hazardous materials brought to the Premises by or on behalf of Supplier or
any Subcontractor). In the event that Supplier or any of its Subcontractors, or any of either of their respective employees,
subcontractors, material suppliers, agents or representatives, causes the release or discharge of any hazardous materials or
toxic substances on the Site or the Premises, Supplier shall be responsible for remediating such release or discharge as
required by all applicable Law and in accordance with Prudent Industry Practice and all other applicable industry
standards.


 


Section 5.4           Commencement of the Work.


 


Supplier shall not
commence performance of the Work, except with respect to those portions of the Work necessary to achieve the Conditions to Notice
to Proceed, unless and until System Owner has provided Supplier with a written Notice to Proceed as provided in Section 3.4.


 


Section 5.5           Work.


 


Section
5.5.1           Supplier shall perform the Work in a good and
workmanlike manner and consistent with local building codes, national electrical standards, standards of professional care,
Prudent Industry Practices, skill, diligence and competence applicable to good engineering, construction and project
management practices, all Government Approvals, applicable Law, the Specifications and all other requirements of
this Agreement.


 


Section
5.5.2           Supplier shall submit to System Owner all drawings,
designs, specifications and other materials associated with the Work (the “Design Work Product”) for
System Owner’s review and approval. The Design Work Product will include Professional Engineer signed and sealed
photovoltaic and electrical drawings, a signed and sealed structural analysis and a complete civil design, including New
Jersey Department of Environmental Protection approvals and approvals of other applicable Governmental Authorities.
System Owner shall, within ten (10) Business Days of submittal (the “Design Review Period”), review such
Design Work Product for general compliance with the scope of the Work hereunder and either offer any comments on such Design
Work Product or provide its approval of such Design Work Product. If System Owner provides any comments
on such Design Work Product, then Supplier shall address such comments and resubmit such Design Work Product for System Owner review
and approval as provided in the prior sentence but Owner may not unreasonably refuse to approve the Design Work Product and shall
support any disapproval with a detailed engineering basis in support of its position. Design Work Product shall be deemed approved
by System Owner for purposes herein if, following such submission (or resubmission, as applicable) System Owner fails to complete
its review or provide any comments within the Design Review Period. Notwithstanding the above, System Owner’s approval of
any Design Work Product shall not relieve Supplier of its responsibility (a) for correct and adequate design of the System, as
set forth herein, or (b) to comply fully with the standards and requirements specified herein.


 




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Section 5.6           Construction
Schedule and Status Reports.


 


Section
5.6.1           Subject to the provisions of Article XVI and Article
XVIII, Supplier shall perform the Work in accordance with or in advance of the Construction Schedule, attached hereto as Exhibit
G. Supplier affirms that it has reviewed the Construction Schedule and that Supplier is capable of performing and
completing the Work in accordance with the Construction Schedule subject only to the extent of any delays excused in
accordance with this Agreement. Timely performance of the Work in accordance with the Construction Schedule is of the
essence. Supplier shall provide System Owner with written status reports of the Work on the fifth (5th)
Business Day of each month, including explanations of any deviations from the Construction Schedule and addressing the
subject matters set forth on Exhibit H.


 


Section 5.6.2           Supplier
shall complete the Work and shall achieve Substantial Completion by the Guaranteed Substantial Completion Date.


 


Section
5.6.3           Subject to the availability of labor and equipment to
Supplier, System Owner shall have the right, from time to time, to require that Supplier perform the Work in advance of the
Construction Schedule, provided that System Owner shall reimburse Supplier for all actual labor overtime expenses
incurred by Supplier in such acceleration of the Construction Schedule.


 


Section 5.7           Materials,
Equipment and Services.


 


Section
5.7.1           Supplier shall perform, provide or procure all
services, tools and materials and equipment required for performance of the Work (except for the System Owner Supplied
Equipment) and shall perform all services related to such procurement including inspection, expediting, shipping, unloading,
receiving, inventory, customs clearance and claims of all such materials and equipment. In addition, Supplier shall inspect,
unload and receive all System Owner Supplied Equipment. Unless approved in writing by System Owner, all materials and
equipment, including the System Owner Supplied Equipment, shall be new and of a quality equal to or better than that
provided for in the Specifications.


 


Section
5.7.2           Without limiting the generality of Section 5.7.1, the
solar panels comprising the System shall have a standard test conditions rating equal to the stated nameplate capacity of
such solar panels, as may be set forth in the Specifications.


 




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Section 5.8           Supplier Government Approvals.


 


Supplier, at its own
expense and in its own name, shall obtain and maintain all Government Approvals necessary for the ordinary conduct of its business
as contemplated by this Agreement, including any Government Approvals to engage in business in the state in which the Work is to
be performed and those licenses and registrations listed in Exhibit C.


 


Section 5.9           Conduct of the Work at the Site.


 


Section
5.9.1           Control of the Work. Supplier shall supervise
and direct the Work at the Site using Supplier’s best skill and attention. Supplier shall be solely responsible for the
adequacy of all means, methods, techniques, sequences and procedures for performing the Work, for implementing safety
precautions and programs and for coordinating all portions of the Work. Supplier and its Subcontractors shall be responsible
for any and all loss or damage to their owned or rented property or property of their employees (which shall include any
individuals hired as independent contractors or temporary laborers) of whatever kind or nature, including tools,
equipment and forms.


 


Section
5.9.2           Property Damage. In the performance of the
Work, Supplier will protect and preserve public and private property (including the Premises) and shall exercise reasonable
precautions necessary to prevent damage thereto. If Supplier, any Subcontractors or any employees or contractors of either
directly or indirectly cause any damage to any such property, then Supplier at Supplier’s expense will immediately
repair, rebuild or otherwise restore the same or otherwise make whole such damage so as to restore it to its condition
immediately prior to such damage in a manner reasonably acceptable to the owner thereof.


 


Section
5.9.3           Personnel and Qualifications. Supplier shall
provide all labor and personnel required for the proper performance of the Work. Supplier shall, and shall ensure that each
Subcontractor shall, use qualified labor and personnel in accordance with Prudent Industry Practice. Supplier shall not use,
or permit any Subcontractor to use, in the performance of the Work any personnel reasonably deemed to be incompetent,
careless or unqualified to perform the work assigned to such Person. Supplier shall provide qualified personnel in sufficient
numbers to assure the timely completion of the Work. All personnel, including Subcontractors, shall be licensed and insured
to the extent required by applicable Law or Prudent Industry Practice to perform the Work.


 


Section
5.9.4           Access to the Site. Supplier acknowledges that
its access to and use of the Site will not be unlimited or uninterrupted, and that such access and use shall be subject to
the other requirements of System Owner and Host Customer, including any access restrictions or limitations imposed by Host
Customer in the case of an emergency pursuant to the Solar Energy Agreement. Supplier and its Subcontractors and their
respective personnel shall occupy and use the Site solely for the purpose of performing the Work in accordance with the
provisions of this Agreement. Supplier shall not occupy or use any part of the Site, the Premises (or Host
Customer’s adjacent property) for any purpose, operation or use that is not necessary or incidental to the performance
of the Work. Supplier’s and all Subcontractors’ personnel shall enter and leave the Site only through specific
points of ingress and egress specified by System Owner, which points of ingress and egress may be changed by System Owner by
providing written notice to Supplier. Supplier shall take all actions necessary to prevent unauthorized access to and
trespass on the System and to prevent harm or damage to the System, and shall perform the Work during regular business hours
except as may be required and reasonably requested. Notwithstanding any provisions herein to the contrary, System Owner shall
coordinate and cooperate with Supplier so that Supplier shall have access to the Site in accordance with Section 4.2.


 




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Section 5.10           Compliance with Applicable Law.


 


Supplier will ensure that the Work complies
with applicable Law, rules and regulations, and will not proceed with Work in violation thereof.


 


Section 5.11           Safety.


 


Section
5.11.1         Supplier’s performance of the Work shall include the
provision of all necessary safety devices required by (a) applicable Governmental Authorities (including the Occupational
Safety and Health Administration), (b) applicable Law, (c) Government Approvals, and (d) to the extent information with
respect to such requirements is provided by System Owner to Supplier, the safety requirements of Host Customer, System Owner
and their insurers. Work performed and materials and equipment provided hereunder shall comply in every respect with all such
requirements.


 


Section
5.11.2         Supplier shall initiate, maintain and supervise reasonable safety
precautions and programs in connection with the performance of the Work, including taking reasonable precautions for the
safety of, and providing reasonable protection to prevent damage, injury or loss to (a) Persons employed or hired by Supplier
or Subcontractors in connection with the Work and other Persons at the Premises who may be affected by the Work, (b)
materials and equipment to be incorporated into the System, and (c) other property at the Premises.


 


Section 5.12           Government Approvals and Programs.


 


Section
5.12.1         Supplier Responsibility. Except for those Government
Approvals obtained in the name of Supplier pursuant to Section 5.8, Supplier shall obtain all Government Approvals necessary
for the performance the Work, including those Government Approvals required in Exhibit E, at Supplier’s expense
and on behalf of and in the name of System Owner. Supplier shall keep System Owner reasonably informed of the progress made
with respect to obtaining such Government Approvals, and shall comply with System Owner’s reasonable instructions with
respect thereto. Upon System Owner’s request, Supplier shall also be responsible for assisting Host Customer in
obtaining any Government Approvals Host Customer must obtain in order for Supplier to perform the Work. If required by any
Governmental Authority, Supplier will, on behalf of System Owner and with System Owner’s assistance, obtain in a timely
manner and provide evidence of all requisite rights in land, water and access, together with surveys and legal
descriptions thereof. Supplier shall also be responsible for coordinating with Governmental Authorities, test laboratories
and any other Persons, as necessary, for the administration of any testing or the taking of any other action necessary to
demonstrate the System’s compliance with all applicable Government Approvals and Law. The Contract Price includes full
and complete compensation to Supplier for obtaining all applicable Government Approvals and complying with and maintaining such Government
Approvals in full force and effect through Final Completion.


 




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Section
5.12.2         Ownership of Government Approvals. All permits and
approvals obtained pursuant to Section 5.12.1 related to the ownership and operation of the System shall be owned and
controlled by System Owner. Without limiting the generality of the foregoing, upon request by System Owner, Supplier shall
take all actions, and do all things, necessary to facilitate and to confirm the ownership and control by System Owner of such
permits and approvals.


 


Section
5.12.3         Compliance. Supplier acknowledges that the ITC Cash Grant
is conditioned on compliance with (i) the applicable provisions and regulations of ARRA and the Treasury Guidance and (ii)
the ITC Cash Grant Requirements, as set forth on Exhibit Q. Supplier shall perform the Work in strict compliance with
all of the terms and conditions of the Government Approvals and this Agreement, and shall use its commercially reasonable
efforts to comply, and shall cause all Subcontractors to comply, with the terms of the ITC Cash Grant Requirements, as set
forth on Exhibit Q, all applicable provisions and regulations of ARRA, applicable Law, and all of the terms and
conditions of the Government Approvals. Supplier further agrees that it shall not, and shall cause all Subcontractors not to,
do or omit to do anything that may cause non-compliance with the ITC Cash Grant Requirements, any applicable provision or
regulation of ARRA, any applicable Law, or any of the terms and conditions of the Government Approvals. In addition, and
without in any way limiting the foregoing, Supplier agrees that it shall provide information reasonably requested by System
Owner necessary to satisfy the requirements of the ITC Cash Grant, all applicable provisions and regulations of ARRA,
applicable Law, and all of the terms and conditions of the Government Approvals.


 


Section
5.12.4         General. Supplier shall take all necessary actions,
including those set forth on Exhibit P, to cause System Owner to be able to satisfy all of its obligations to Host
Customer under the Solar Energy Agreement in connection with obtaining all permits, approvals, and other authorizations that
may be required by any Governmental Authority or by the interconnected Host Utility.


 


Section 5.13           Environmental Credits.


 


Supplier shall take
all actions, and do all things (including providing all applicable documentation for System Owner’s and Host Customer’s
execution, as applicable), necessary to obtain a valid commitment reasonably satisfactory to System Owner from the applicable Governmental
Authority that the System will be eligible for and shall receive the benefit of the Environmental Credits. All economic benefits,
and, to the extent possible under applicable Law, all ownership rights relating to Environmental Credits shall be for the benefit
of System Owner, and Supplier shall make no claim on such benefits. The Parties agree that each intends that to the extent possible
all available Environmental Credits and all economic benefits relating to any available Environmental Credits related to or arising
out of this Agreement and the System shall belong to and shall be for the sole benefit of System Owner, and to the extent Supplier
may have any interest in such Environmental Credits and benefits from time to time, Supplier hereby makes an absolute assignment
of all such Environmental Credits and benefits to System Owner to the fullest extent allowed by law.


 




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Section 5.14           Interconnection Facilities; Net Metering.


 


Section
5.14.1         Supplier shall install the Meter and monitoring system, in
accordance with the System Owner’s approved design, at each Delivery Point to measure the amount of Output to be
delivered to Host Customer.


 


Section
5.14.2         Supplier shall take all actions, and do all things, necessary to
obtain the Host Utility Documents, including those actions set forth on Exhibit P. Without limiting the generality of
the foregoing (a) Supplier shall provide and review with Host Customer a recommended design of facilities for the
interconnection of the System with the BES, (b) Supplier shall assist and advise Host Customer in obtaining its net metering
arrangements with Host Utility, and (c) Supplier shall take all reasonably necessary actions, including those set forth on Exhibit
P, so that Host Customer may finalize all such arrangements, and Supplier shall cooperate with System Owner and Host
Customer for the purposes of Host Customer’s maintaining such arrangements.


 


Section 5.15           Performance and Payment Bond.


 


Section
5.15.1         As security for the performance of its obligations under this
Agreement, Supplier shall, within twenty (20) Business Days of the Effective Date, provide System Owner with a performance
bond as well as a labor and material payment bond (collectively, the “Performance and Payment Bond”) from
the Performance and Payment Bond Issuer in the amounts and substantially in the form set out in Exhibit I, assuring
that the Performance and Payment Bond Issuer shall be responsible to System Owner pursuant to the terms of the Performance
and Payment Bond.


 


Section
5.15.2         The Performance and Payment Bond shall provide a limited warranty
to the System Owner that guarantees to the System Owner that the Work shall be and remain free from Defects in materials and
equipment and workmanship (exclusive of any defects in the manufacturing of materials and equipment installed on the project)
for a period not to exceed twelve (12) months from Substantial Completion.


 


Section
5.15.3         For purposes of clarity, any warranty obligations of Supplier to
the System Owner under Article VIII that extend beyond such twelve (12) month period shall not be covered under the
Performance and Payment Bond, and nothing in this Section 5.15 shall limit the obligations of Supplier under Article
VIII.


 


Section 5.16            System Owner Supplied Equipment.


 


Section 5.16.1         System
Owner Supplied Equipment Generally.


 


(a)          Supplier
acknowledges that System Owner has directly entered into System Owner Supplied Equipment Contracts for the supply of the
System Owner Supplied Equipment. Nonetheless, Supplier acknowledges that the subject matter of the System Owner Supplied
Equipment Contracts that have been disclosed to Supplier as provided in Section 5.16.2(a) is, or shall be deemed, Work to be
provided or performed by Supplier hereunder. Except as expressly stated herein or as System Owner otherwise directs, Supplier
shall act on behalf of System Owner with respect to all System Owner Supplied Equipment Contracts to the same extent and in the same manner as if such
System Owner Supplied Equipment Contracts were Subcontracts for all purposes hereunder.


 




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(b)          Supplier
shall ensure that any Work performed in connection with the System Owner Supplied Equipment Contracts shall be performed in
compliance with the Specifications.


 


Section 5.16.2         Delivery
of System Owner Supplied Equipment Contracts.


 


(a)          As
of the Effective Date, System Owner has delivered to Supplier all System Owner Supplied Equipment Contracts; provided,
that System Owner may redact certain confidential information in its reasonable discretion, such as the price and other
payment provisions of such System Owner Supplied Equipment Contracts. Supplier has reviewed such System Owner Supplied
Equipment Contracts and has determined that each such System Owner Supplied Equipment Contracts conforms with the
Specifications. On or before the Effective Date, Supplier shall deliver written notice substantially in the form of Exhibit
R affirming conformity to System Owner.


 


(b)          System
Owner shall not amend or modify any System Owner Supplied Equipment Contract in any manner that affects the Work or the
Construction Schedule without the review and consent of Supplier, which review and consent shall not be unreasonably withheld
or delayed.


 


Section 5.16.3         Responsibilities
and Rights under System Owner Supplied Equipment Contracts.


 


(a)          System
Owner hereby grants to Supplier authority to act on behalf of System Owner, as agent, solely in connection with performing
any obligation under or exercising any rights (including rights to damages and warranties) with respect to the System Owner
Supplied Equipment Contracts. At any time following Supplier’s material breach of this Agreement, System Owner may, in
its sole discretion, revoke or otherwise limit such authority of Supplier granted hereby. System Owner will notify its
counterparties under the applicable System Owner Supplied Equipment Contract regarding Supplier’s authority hereunder.
Supplier shall fully perform all such obligations and exercise all such rights of the System Owner under the System Owner
Supplied Equipment Contracts until Final Completion, except for obligations of the System Owner to make payments due
thereunder.


 


(b)          If
Supplier fails in any material respect to perform any duties, responsibilities or obligations or exercise any rights under
the System Owner Supplied Equipment Contracts as provided in Section 5.16.3(a), then System Owner reserves the right to
perform such duties, responsibilities or obligations or exercise such rights.


 


(c)          Title
to the System Owner Supplied Equipment shall remain at all times with System Owner.


 


(d)          The
Contract Price specifically excludes any System Owner Supplied Equipment.


 




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Section 5.16.4         Consideration
for Obligations.


 


Supplier hereby acknowledges
and agrees that the Contract Price, as may be adjusted hereby, to be paid by the System Owner to the Supplier encompasses adequate
and full consideration for Supplier’s obligations hereunder with respect to any System Owner Supplied Equipment Contracts,
including with respect to those obligations set forth in Section 5.16.3.


 


ARTICLE VI

SUBCONTRACTS


 


Section 6.1           Subcontractors.


 


Supplier may enter
into one or more Subcontracts with respect to any item of the System or any other component of the Work; provided that notwithstanding
anything to the contrary in this Agreement, Supplier shall provide System Owner with the names of all Subcontractors prior to entering
into any Subcontracts. All Subcontractors performing any component of the Work shall be licensed and insured, consistent with applicable
Law, Prudent Industry Practices and reasonable commercial practices. Without limiting the generality of the foregoing, each Subcontractor
shall have all licenses and registrations required to perform the Work to be performed by such Subcontractor, including all licenses
and registrations to perform the Work in the State of New Jersey, and each Subcontractor shall have any business registration certificate
required to perform the Work; upon written request by System Owner, Supplier shall, and shall cause each Subcontractor to, provide
reasonable evidence of same to System Owner, which evidence System Owner may provide to Host Customer. Supplier shall provide System
Owner with prior written notice and request for System Owner consent as to each Major Subcontractor that will be performing the
installation activities at the Premises. Request for System Owner consent will include evidence of licenses, registrations and
insurance and a detailed description of each Major Subcontractor’s scope of work. System Owner will have five (5) business
days to accept or reject each Major Subcontractor.


 


Section 6.2           Subcontractor
Information.


 


Supplier shall furnish
copies of Subcontracts or purchase orders or such other information with respect to its Subcontractors as System Owner or the Lenders
may reasonably request, provided that Supplier may redact certain proprietary information in its reasonable discretion,
such as the actual dollar amounts of such purchase orders. Notwithstanding the foregoing, if and to the extent any of System Owner’s
or any Lender’s auditors or appraisers or any Governmental Authority reasonably require any such redacted confidential information,
Supplier shall allow such auditors or appraisers, as applicable, to review such confidential information at Supplier’s office
location; provided that such auditors or appraisers shall be informed of their obligation to hold such confidential information
in confidence, consistent with such auditors’ or appraisers’ usual and customary practice.


 






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Section 6.3           Supplier
Responsible for Work.


 


Supplier shall be fully responsible
for each of the various portions of the Work so that all items thereof conform in all respects to the requirements of this
Agreement regardless of any failure of any Subcontractor to perform, or any disagreement between any Subcontractors or
between any Subcontractors and Supplier, or System Owner’s approval of any Subcontract or Subcontractor. No Subcontract
shall be construed to relieve Supplier of any obligation or liability hereunder.


 


Section 6.4           Terms
in Subcontracts.


 


Section
6.4.1           All Work performed for Supplier by a Subcontractor
shall be pursuant to a written Subcontract between Supplier and such Subcontractor. No Subcontract shall bind or purport to
bind System Owner. Each Subcontract shall contain provisions that reasonably preserve and protect all the rights of System
Owner under this Agreement and to the Work to be performed under the Subcontract, so that the subcontracting of such Work
will not prejudice such rights.


 


Section
6.4.2           Supplier (and its successors and assigns) shall ensure
that all Major Subcontracts are assignable from Supplier to System Owner upon the expiration or termination of this Agreement
without the further consent of the applicable Subcontractor.


 


ARTICLE VII

COMPLETION OF THE WORK


 


Section 7.1           System Owner Access to System during Work.


 


System Owner shall
at all times, upon reasonable advance notice to Supplier and subject to compliance with Supplier’s reasonable safety requirements,
have access to (a) the System wherever it is in preparation and progress and (b) the Site, at all hours of each day during each
stage of construction, Start-Up, testing and completion of the System. System Owner shall also be entitled to maintain staff to
observe the progress and quality of the Work and to observe tests and inspections.


 


Section 7.2           Interconnection
to BES.


 


Supplier shall give
System Owner notice that it intends to interconnect the System to the BES not less than seven (7) days before interconnection of
the System to the BES. Upon request from System Owner, Supplier shall schedule such interconnection and any required shutting down
of the BES on a night or weekend. In the event that any required shutting down of the BES continues for more than four (4) hours,
Supplier shall provide a generator to provide power to the BES for the duration of such shutting down of the BES.


 


Section 7.3           Commissioning
Tests.


 


Section
7.3.1           Consistent with its obligations with respect to the
Construction Schedule, Supplier shall, upon not less than ten (10) Business Days notice to System Owner and the Independent
Engineer, in the presence of the Independent Engineer and, at System Owner’s option, a representative of System Owner
and the Host Customer, perform the Commissioning Tests in accordance with the test protocols set forth in Exhibit
J.


 




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Section
7.3.2           Supplier shall, upon not less than ten (10) Business
Days notice to System Owner and the Independent Engineer, in the presence of the Independent Engineer and, at System
Owner’s option, a representative of System Owner and the Host Customer, perform other industry standard tests as part
of the Commissioning Tests as reasonably requested by System Owner.


 


Section 7.4           Substantial
Completion.


 


Section
7.4.1           When Supplier believes that it has achieved the
requirements of Substantial Completion, Supplier shall provide written notice (the “Notice of Substantial
Completion”) to System Owner stating that Supplier has achieved Substantial Completion, together with copies of all
documents (as identified in the definition of Substantial Completion) that are required to be delivered to System Owner to
meet Substantial Completion that have not been previously delivered.


 


Section
7.4.2           Upon receipt of the Notice of Substantial Completion,
System Owner shall promptly proceed to obtain Independent Engineer’s review and approval of the Notice of Substantial
Completion and the Commissioning Report within a reasonable time, but in no event more than ten (10) Business Days following
receipt of the Notice of Substantial Completion and all accompanying documents or such longer period of time as specified in
the Construction Schedule (the “Substantial Completion Review Period”).


 


Section
7.4.3           Supplier shall provide System Owner with reasonable
notice of the date and time of the inspection or review of the System by a representative of the applicable Governmental
Authority or Host Utility, if required, for purposes of achieving Substantial Completion, and System Owner shall have the
right to have one or more representatives and the Independent Engineer present during such inspection or review. If the
representative of the applicable Governmental Authority or Host Utility notifies Supplier or System Owner that the
requirements for achieving Substantial Completion have not been achieved, then Supplier shall promptly take such action
as necessary to achieve such requirements and, to the extent applicable, schedule another inspection or review of the System.
Such procedure shall be repeated until such inspection or review has been satisfactorily completed and approved.


 


Section
7.4.4           If System Owner and the Independent Engineer approve
the Notice of Substantial Completion, System Owner shall, within the Substantial Completion Review Period, (a) notify
Supplier of its approval and (b) issue written notice to Supplier to complete the Work (the “Notice to
Complete”).


 


Section
7.4.5           If System Owner or the Independent Engineer has a
reasonable basis not to approve the Notice of Substantial Completion because the requirements for Substantial Completion have
not been met, System Owner shall, within the Substantial Completion Review Period, notify Supplier of its non-approval and
include a detailed explanation for the basis thereof. Supplier shall promptly undertake such action or work as necessary to
achieve such requirements and shall then issue another Notice of Substantial Completion to System Owner stating that Supplier
believes that such requirements have been achieved. Such procedure shall be repeated until Substantial Completion is
achieved. If Supplier disputes the reasons stated in System Owner’s notification, then such dispute shall be resolved
in accordance with Article XIX.


 




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Section 7.5           Punchlist


 


During the Substantial
Completion Review Period, System Owner shall, or shall cause its Independent Engineer to, generate a list of Work, if any, which
remains to be completed after Substantial Completion (the “Punchlist”) and provide the Punchlist to Supplier.
The Punchlist shall include the proposed time limits within which Supplier will complete such remaining Work, which shall be no
later than the time period specified in Section 7.7.1 to achieve Final Completion.


 


Section 7.6           Certain Damages.


 


Section 7.6.1 The Parties
agree that it would be extremely difficult and impracticable under currently known and anticipated facts and circumstances to ascertain
and fix the actual damages System Owner would incur if the conditions for Substantial Completion of the System are not satisfied
(or otherwise waived by System Owner) by the Guaranteed Substantial Completion Date (other than for delays caused directly and
solely by the occurrence of a Force Majeure Event). Accordingly, in addition to System Owner’s remedies hereunder, including
all other damages recoverable by System Owner hereunder, whether as the result of delay or otherwise, Supplier shall pay to System
Owner, as liquidated damages and not as a penalty, the following amounts, which the Parties deem reasonable in light of (1) the
anticipated harm caused, (2) the difficulties of proof of loss and (3) the inconvenience or non-feasibility of otherwise obtaining
an adequate remedy:


 


(a)          The
applicable per diem dollar amounts set forth in Exhibit O for each day (or portion of a day) after the Guaranteed Substantial
Completion Date that Substantial Completion has not been achieved, unless and to the extent of any excused delays in accordance
with this Agreement. Such liquidated damages shall continue to accrue and be payable hereunder until such date as Substantial Completion
is achieved or the Work is completed by a replacement contractor following termination of this Agreement in accordance with Section
7.6.2.


 


(b)          Supplier
shall pay to System Owner the liquidated damages payable pursuant to Section 7.6.1(a) on the last Business Day of each month following
the Guaranteed Substantial Completion Date (including the month in which the Guaranteed Substantial Completion Date falls). Any
such liquidated damages amounts not paid when due shall accrue interest at the Prime Rate plus one and one half percent (1.5%)
until paid.


 


Section
7.6.2           If Substantial Completion has not occurred by the date
that is thirty (30) days following the Guaranteed Substantial Completion Date due to Supplier’s failure to perform
pursuant to this Agreement, System Owner may terminate this Agreement pursuant to Section 17.1.2, retain all liquidated
damages assessed pursuant to Section 7.6.1, and pursue all of its remedies hereunder, including all other damages recoverable
by System Owner pursuant to Sections 17.3 and 20.11. For purposes of clarity, the liquidated damages paid pursuant to Section
7.6 are not the exclusive remedy or damages available to the Parties.


 




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Section 7.7           Final
Completion.


 


Section 7.7.1           Supplier
shall achieve Final Completion within forty-five (45) days after receipt of the Notice to Complete. When Supplier believes that
it has achieved the requirements of Final Completion, Supplier shall deliver written notice (the “Notice of Final Completion”)
to System Owner stating that Supplier has achieved Final Completion together with any supporting documents evidencing completion
of all Work and items on the Punchlist.


 


Section 7.7.2           Within
ten (10) Business Days following receipt of the Notice of Final Completion (the “Final Completion Review Period”),
if System Owner and the Independent Engineer determine that Supplier has achieved Final Completion, System Owner shall provide
written notice to Supplier certifying the same in accordance with the requirements herein. If System Owner or the Independent
Engineer has a reasonable basis not to approve the Notice of Final Completion because the requirements for Final Completion have
not been met, System Owner shall, within the Final Completion Review Period, notify Supplier of its non-approval and include a
detailed explanation for the basis thereof. Supplier shall promptly undertake such action or work as necessary to achieve such
requirements and shall then issue another Notice of Final Completion to the System Owner stating that Supplier believes that such
requirements have been achieved. Such procedure shall be repeated until Final Completion is achieved. If Supplier disputes the
reasons stated in System Owner’s notification, then such dispute shall be resolved in accordance with Article XIX.


 


ARTICLE VIII

WARRANTIES


 


Section 8.1           Warranty.


 


Section
8.1.1           The System shall be designed, engineered, constructed
and installed in a workmanlike manner using new materials and equipment. The Work shall strictly conform to the requirements
of this Agreement (including the Specifications) and applicable Laws, and the Work (including any roof or Site preparation)
shall be and remain free from Defects in design, materials and equipment, and workmanship for the Warranty Period. Supplier
shall cause all manufacturer’s or other warranties with respect to the roof, solar panels, the inverters and the
mounting system to be assigned to, and for the benefit of, System Owner, its successors and permitted assigns as provided in
Section 8.3.


 


Section
8.1.2           Supplier further warrants that all System Manuals,
System drawings and materials and equipment details and specifications delivered by Supplier to System Owner hereunder are
accurate, current, complete and authentic.


  



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Section 8.2           Remedy for Nonconformance with Warranty.


 


Section 8.2.1         If
System Owner discovers that the System (including any items of material or equipment incorporated therein and not otherwise covered
by a manufacturer’s warranty) or that any of the Work performed by Supplier hereunder fails to conform to any of the warranties
set forth in Section 8.1 (the “Warranty”), then System Owner shall give written notice of the nonconformity
with reasonable promptness following System Owner’s discovery thereof and in no event later than thirty (30) days after
the expiration of the Warranty Period. Upon receipt of such notice, Supplier shall repair or replace, or cause the repair or replacement
of, the nonconformity, at the sole cost and expense of Supplier. Supplier shall perform its remedial obligations in a timely manner
consistent with System Owner’s reasonable requirements. Any part of the Work so repaired, replaced or corrected shall be
similarly warranted for the later of (a)  a period of twelve (12) months from the date of such repair, replacement or
correction or (b)   until the end of the original Warranty Period. In the event Supplier does not repair or replace
the nonconformity within said thirty (30) day period, it shall be liable for the sum of (1) the product of (A) the number of kilowatt
hours of Electricity not delivered or accepted due to the failure to repair or replace the nonconformity, determined on the basis
of the Expected Output level for such period of non-delivery multiplied by (B) the then-effective solar electricity price
(“Solar Electricity Price”) under the Solar Energy Agreement plus (2) the value of the Environmental
Credits associated with such kilowatt hours determined in accordance with clause (1) of this Section 8.2.1 that were not available
due to the failure to repair or replace the nonconformity, based upon market value of such Environmental Credits reasonably determined
by an existing agreement for the purchase and sale of the System’s Environmental Credits, if such agreement is in place,
or market data (determined by spot market quotes from at least three reputable brokers), if such an agreement is not in place
until such time as the repair or nonconformity is repaired or replaced.


 


Section
8.2.2          If Supplier does not use its reasonable efforts to commence
and diligently pursue a remedy within thirty (30) days after written notice of a nonconformity, other than a nonconformity
affecting capacity, then System Owner, after written notice to Supplier, may perform or have performed by qualified and
vendor-authorized third parties the necessary remedy consistent with the Specifications, and Supplier shall be liable for all
direct, reasonable and documented costs (including overhead), charges and expenses (including transportation and expediting
fees) incurred by System Owner in connection with such remedy.


 


Section
8.2.3          Notwithstanding Section 8.2.2, if a nonconformity affects
the capacity of the System during the warranty period, Supplier shall commence and diligently pursue a remedy within three
(3) days after written notice from System Owner. If Supplier does not so commence and diligently pursue a remedy, System
Owner may perform or have performed by qualified and vendor-authorized third parties the necessary remedy consistent with the
Specifications, and Supplier shall be liable for all direct reasonable and documented costs (including overhead), charges and
expenses (including transportation and expediting fees) incurred by System Owner in connection with such remedy.


 


Section
8.2.4          Supplier shall correct and re-perform any engineering or
design Work that does not conform to all of the warranties set forth in this Article VIII and perform or cause to be
performed remedial construction work or rework that is required to effect such re-performed engineering or design Work, all
at the cost and expense of Supplier.


 


Section
8.2.5          Supplier shall be responsible for all other costs and
expenses necessary to determine the need for, and to secure access to and perform, remedial Work, including cost of materials
and labor.


 




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Section 8.3           Assignment of Subcontractor Warranties.


 


Section
8.3.1          Supplier shall cause all Subcontractor and
manufacturer’s warranties with respect to the Work and the System to be assigned to, and for the benefit of, System
Owner, its successors and permitted assigns, including any roof warranty, effective as of Substantial Completion, and
Supplier shall cause each such Subcontract to include a provision whereby each such Subcontractor and manufacturer consents
to such assignment of warranty to System Owner. Supplier shall cause all other remaining Subcontractor and
manufacturer’s warranties to be assigned to, and for the benefit of, System Owner, its successors and permitted
assigns, effective as of the expiration of the Warranty Period; provided, that System Owner shall at all times have
the right to enforce any warranty thereunder in the event Supplier does not, or is unable to, enforce such rights. System
Owner and Supplier shall cooperate in good faith with each other in enforcing any warranty in the event such cooperation is
necessary or desirable for the enforcement of the warranty. The forms of each manufacturer’s warranty for the solar
panels and inverters is attached as Exhibit K. All warranties shall be transferable by System Owner to any successor
in interest to the System or the materials and equipment incorporated therein.


 


Section
8.3.2          During the Warranty Period and unless instructed in writing
by System Owner otherwise, Supplier shall coordinate and facilitate all claims by System Owner (a) under such warranties
assigned under Section 8.3.1 and (b) under any warranties with respect to the System Owner Supplied Equipment (to the extent
allowed in the System Owner Supplied Equipment Contracts).


 


Section 8.4          Exclusive Warranties.


 


THE WARRANTIES
SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, EXPRESSED OR IMPLIED, OF PERFORMANCE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, CUSTOM, USAGE OR OTHERWISE. THERE ARE NO OTHER WARRANTIES, AGREEMENTS OR UNDERSTANDINGS THAT
EXTEND BEYOND THOSE SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE SYSTEM OR THE WORK. NO OTHER WARRANTY, ORAL OR WRITTEN, WHICH
MIGHT HAVE BEEN GIVEN BY AN EMPLOYEE, AGENT OR REPRESENTATIVE OF SUPPLIER, IS AUTHORIZED BY SUPPLIER.


 


Section 8.5       Exclusions from Warranties.


 


SUPPLIER
IS NOT AND SHALL NOT BE HELD LIABLE FOR ANY NONCONFORMITY WITH THE WARRANTIES GIVEN IN THIS AGREEMENT TO THE EXTENT THAT SUCH NONCONFORMITY
IS DUE TO:


 


(a)          ORDINARY WEAR AND TEAR
IN THE OPERATION OF THE SYSTEM;


 


(b)          ALTERATIONS
OR REPAIRS OF THE SYSTEM CARRIED OUT BY ANY PERSON OTHER THAN SUPPLIER OR ITS SUBCONTRACTORS (PROVIDING SUCH WORK AT THE
DIRECTION OF ANY PERSON OTHER THAN SYSTEM OWNER) NOT AUTHORIZED BY SUPPLIER; PROVIDED THAT IN THE EVENT THAT SYSTEM
OWNER ALTERS OR REPAIRS, OR ENGAGES A THIRD PARTY TO ALTER OR REPAIR, THE SYSTEM PURSUANT TO SECTION 8.2.2 OR 8.2.3, SUPPLIER
SHALL NOT BE RELIEVED OF ITS OBLIGATIONS UNDER THIS ARTICLE VIII WITH RESPECT TO ANY PORTION OF THE SYSTEM OR EQUIPMENT;
OR


 




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(c)          A FORCE MAJEURE EVENT.


 


ARTICLE IX

PRICING, PAYMENT AND CHANGE ORDERS


 


Section 9.1          Contract Price.


 


As full
compensation and consideration for the full and complete performance of all of the Work and all of Supplier’s other obligations
under this Agreement and all costs (including Taxes) in connection therewith, System Owner shall pay to Supplier, and Supplier
shall accept, a fixed, lump sum amount (the “Contract Price”) as set forth in Exhibit L, attached hereto.
The Contract Price shall not change, except as and to the extent set forth in Section 9.5.


 


Section 9.2           Invoices and Payments.


 


Section
9.2.1          Payment Schedule. System Owner shall pay Supplier the
Contract Price in accordance with the Payment Schedule set forth in Exhibit L.


 


Section
9.2.2          Invoicing. Supplier shall provide System Owner with
an invoice, substantially in the form attached hereto as Exhibit M, in accordance with the Payment Schedule set forth
in Exhibit L but in no event more frequently than twice per month.


 


Section
9.2.3          Accompanying Documents and Lien Waivers. Together
with each invoice, Supplier shall deliver all accompanying documents required to be delivered with respect to such milestone
payment, as set forth in Exhibit L, and affidavits and waivers of liens, as set forth in this Section 9.2.3, as a
condition of Supplier’s right to receive any payment. Supplier shall deliver the following affidavits and waivers of
liens:


 


(a)             Conditional
waivers substantially in the form of the “conditional waiver and release upon progress payment” provided in Exhibit
N, executed by Supplier and each Subcontractor, with respect to work done, services performed or materials or equipment
furnished in connection with the Work (including any materials and equipment supplied hereunder) to the date of the
accompanying invoice (except Supplier’s waiver in connection with the Substantial Completion Payment, executed by
Supplier and delivered in escrow to System Owner as described in Section 3.1.1);


 


(b)             Unconditional
waivers substantially in the form of the “unconditional waiver and release upon final payment” provided in Exhibit
N, executed by each Subcontractor with respect to work done, services performed or materials or equipment furnished in
connection with the Work (including any materials and equipment supplied hereunder) to accompany the invoice requesting the
final payment for such Subcontractor’s scope of work, to be held in escrow by System Owner and released to System Owner
or its designee upon Supplier’s receipt of such payment.


 




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(c)             The
unconditional waiver substantially in the form of the “unconditional waiver and release upon final payment”
provided in Exhibit N, executed by Supplier and delivered as provided in Section 3.1.1.


 


Section
9.2.4           Payments. System Owner shall pay Supplier all
undisputed amounts from each invoice within thirty (30) days after receipt of such invoice and all accompanying documents and
affidavits and satisfaction of all other requirements, all as required pursuant to Section 9.2.3 and Exhibit L.
Undisputed amounts owed to Supplier under this Agreement not paid when due, shall accrue interest each day beyond the date
when due that such amounts are not paid at an annual interest rate equal to Prime Rate plus one and one-half percent (1.5%).
If System Owner disputes any portion of an invoice, System Owner shall provide written notice to Supplier indicating the
reason System Owner is withholding any amount and shall pay the undisputed portion of the invoice in accordance with
this Section 9.2. Any such amounts withheld by System Owner that ultimately are determined to be due and payable to Supplier
shall accrue interest as stated above for the period between the date the invoice was issued and the date such amounts are
paid. No payment by System Owner of any invoice shall be deemed System Owner’s acceptance of the Work reflected
thereon. The Parties shall resolve disputes relating to any invoices in accordance with the procedures set forth in Article
XIX. Neither payments made to Supplier nor the method of such payments shall relieve Supplier of its obligation to perform
the Work in strict compliance with the requirements herein. Notwithstanding any provision hereof to the contrary, System
Owner may reduce the amount of any payment due to Supplier hereunder, including the Substantial Completion Payment and the
Final Payment, by the amount of liquidated damages, if any, incurred by Supplier pursuant to Section 7.6.1 or 8.2.1, or both,
to the extent unpaid by Supplier prior to the date of such payment by System Owner, in which event System Owner shall be
deemed to have satisfied its payment obligation to Supplier hereunder to the extent of the amount of such reduction.


 


Section 9.2.5          Form
of Payment. System Owner may pay any payment under this Agreement by wire pursuant to the following instructions:


 


	 	ECO-KINETICS GROUP PTY LTD USD 

Account
	 	Westpac Banking Corporation

 BSB: 034702
	 	Account no: 422924
	 	Swift: WPACAU2S


 




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Section 9.3          Holdback.


 


Section
9.3.1          System Owner shall be entitled to retain ten percent (10%)
of all amounts invoiced until the date on which the Substantial Completion Payment, as set forth on Exhibit L, is due,
and from and after such date, System Owner shall be entitled to retain five percent (5%) of all amounts invoiced until the
date on which the Final Completion Payment, as set forth on Exhibit L, is due. At the time of making such Final
Completion Payment, System Owner shall release all such retained amounts to Supplier.


 


Section
9.3.2          Upon Final Completion, and subject to System Owner’s
right to set off any amounts due from Supplier to System Owner hereunder, System Owner shall pay to Supplier the Final
Payment; provided, that if any items on the Punchlist are subject to a dispute, System Owner shall be entitled to
retain the portion of the Final Payment that corresponds to the reasonably estimated cost of completion of such item pending
the resolution of such dispute.


 


Section 9.4           Withholding Payment.


 


The occurrence of any of the
following conditions shall be grounds for withholding payment to the extent applicable and until such issue is resolved:


 


(a)              Any defective Work not
remedied;


 


(b)              Claims
asserted or filed against System Owner pursuant to any applicable laws or codes, or liens asserted or filed against the Site,
the Premises, the Work, the System or any part thereof, or reasonable evidence indicating probable assertion or filing of
such claims or liens;


 


(c)              Failure of Supplier to
make payments promptly to any Subcontractor or consultant;


 


(d)              Damage to the Work, the
work of a Subcontractor or the Premises for which System Owner reasonably asserts that Supplier is liable; or


 


(e)               Fines for safety violations
imposed on System Owner or Host Customer if resulting from Supplier’s performance of the Work.


 


Section 9.5           Change Orders Procedure.


 


Section 9.5.1          Changes.
Consistent with the procedures set forth in this Section 9.5, System Owner may, by issuance of a written order (each such order,
a “Change Order”), instruct Supplier to make certain changes to the Work (each, a “Change”),
including any addition to, deletion from, suspension of or other modification to the quality, function or intent of the Work,
and to the extent provided for in this Section 9.5, adjust the Construction Schedule or the Contract Price and any other affected
provision herein, as applicable. Changes to the Work may only be made by Change Orders issued in accordance with this Section
9.5.


 




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Section 9.5.2          Changes
Initiated by Supplier. If Supplier becomes aware of any circumstances that Supplier has reason to believe may affect the progress
of the Work or the performance of the System and thereby necessitate a Change, Supplier will, within ten (10) Business Days of
becoming aware of such circumstance, issue to System Owner a written request (each such request, a “Change Order Request”).
Failure to issue a Change Order Request within the time period set forth above shall constitute a waiver of Supplier’s right
to request a Change for such circumstances. Change Order Requests shall include documentation reasonably sufficient to enable
System Owner to determine, as applicable, (a) the factors necessitating the possibility of a Change, (b) the impact which the
Change is likely to have on the Contract Price, if any, (c) the impact the Change is likely to have on the Construction Schedule,
if any and (d) such other information that System Owner may reasonably request in connection with such Change. System Owner may,
but shall not be obligated to, issue a Change Order pursuant to a Change Order Request.


 


Section 9.5.3          Changes
Initiated by System Owner. If System Owner desires to make a Change constituting a modification to the System or to the scope
of the Work, it will first submit a written notice (each such notice, a “Change Order Notice”) to Supplier.


 


(a)             If such Change (i) would
require an adjustment to the Contract Price of less than $25,000 or the Construction Schedule of less than three (3) days and (ii)
would not adversely affect (A) the amount of Output the System is capable of producing, (B) the validity of any manufacturer’s
warranty, (C) Supplier’s Warranty obligations or (D) the conditions of the Site for which Supplier has assumed the cost and
risk hereunder, then Supplier shall be obligated to implement such Change as directed by System Owner, subject to Construction
Schedule extensions and Contract Price changes made pursuant to Sections 9.5.4 and 9.5.5, respectively.


 


(b)             If
such Change is not of a type that falls under the provisions of Section 9.5.3(a), then Supplier shall promptly review the
Change Order Notice and notify System Owner in writing within a reasonable amount of time of the options for implementing the
proposed Change and the estimated effect(s), if any, that each such option would have on the System, the Site, the Contract
Price, the Work and the Construction Schedule, as applicable. Based upon such information, System Owner may, but shall not be
obligated to, issue a Change Order making a Change based upon such Change Order Notice.


 


Section 9.5.4          Changes
Involving Schedule Extensions. To the extent that Supplier reasonably demonstrates that a Change will delay Supplier in complying
with the Construction Schedule (taking into consideration implementation of reasonable mitigation of such delay), then System
Owner will issue the Change Order including an equitable extension of the date(s) in the Construction Schedule.


 


Section 9.5.5          Changes
to the Contract Price. To the extent that the Party requesting the Change reasonably demonstrates that such Change will affect
the basis for the Contract Price (taking into consideration implementation of reasonable mitigation of such effect), then System
Owner will issue the Change Order including an equitable change in the Contract Price. System Owner shall determine, in its sole
discretion, whether such change in the Contract Price shall be based (a)on a lump sum adjustment or (b) on the documented change
in Supplier’s actual costs, reasonably incurred, associated with the Change.


 




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Section 9.5.6         Change
Pending Resolution of Disputes. Any dispute with respect to a Change Order shall be resolved according to the procedures set
forth in Article XIX. Notwithstanding any pending dispute with respect to a Change, Supplier shall proceed with the performance
of a Change directed by System Owner unless System Owner otherwise agrees or directs; provided, that if such Change is
of the type identified in Section 9.5.3(b), then Supplier shall not be obligated to implement such Change and shall continue performing
the Work without affecting the disputed Change pending the resolution of such Change dispute.


 


Section 9.5.7          Documentation. Each
Change Order shall be supported by reasonable documentation to verify the accuracy thereof.


 


ARTICLE X

LIENS AND CLAIMS


 


Section 10.1          Waiver and Release of Liens. 


 


Section 10.1.1       No
Liens. Supplier, for itself, its successors and assigns, and all Subcontractors and other Persons acting through or under
it or them, does hereby covenant, promise and agree with System Owner that (i) no mechanics’ lien, mechanics’ lien
affidavit or other claim or encumbrance in the nature of a lien shall be filed or maintained against the Host Customer or the
Premises or any part thereof or appurtenances thereto by Supplier or any Subcontractor, for Work done or for any tools, materials,
equipment, or supervision, surveying, engineering, architectural or other services furnished under this Agreement or any Subcontract
or any supplements hereto or thereto, and (ii) from and after Supplier’s receipt of each payment from System Owner pursuant
to the terms and conditions of this Agreement, no mechanics’ lien, mechanics’ lien affidavit or other claim or encumbrance
in the nature of a lien shall be filed or maintained against System Owner or the System or any part thereof or appurtenances thereto
by Supplier or any Subcontractor, for Work done or for any tools, materials, equipment, or supervision, surveying, engineering,
architectural or other services furnished under this Agreement or any Subcontract or any supplements hereto or thereto and paid
for by System Owner through having made the applicable payment, whether or not title to any or all of such property has passed
to System Owner upon making such payment.


 


Section 10.1.2       Independent
Covenant. This waiver of liens shall be an independent covenant in favor of System Owner and its successors and assigns and
shall operate and be effective with respect to any work, equipment, materials and services furnished under any supplemental contract
for extra work in connection with the construction of the System, as well as to the Work performed and materials and equipment
furnished under this Agreement.


 


Section 10.1.3       Other
Agreements. In order to give System Owner and each of its successors and assigns full power and authority to protect itself
and the System against any and all claims filed by Supplier, or by any Subcontractor or anyone acting under or through Supplier
in violation of the foregoing covenant, Supplier, for itself, its successors and assigns, and all such Persons, hereby covenants
to execute or re-execute any agreement or instrument as System Owner, Host Customer or Lenders and their respective successors
and assigns shall reasonably request at no cost or expense to System Owner, Host Customer or Lenders or their respective successors
and assigns to evidence this waiver of liens and the agreements contained herein.


 




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ARTICLE XI

INSURANCE


 


Section 11.1          Supplier’s Insurance. 


 


Section
11.1.1       Supplier shall procure at its own expense and maintain in
full force and effect, with responsible insurance carriers reasonably acceptable to System Owner that have an A.M. Best
rating of A- or better authorized to do business in the state in which the System is located, all insurance as specified in
Section 11.1.2, in at least the minimum amounts specified; provided, that, if Supplier subcontracts the design and
engineering portion of the Work, then such design or engineering professional (or firm) shall procure and maintain the
professional liability (errors & omissions) insurance required below in lieu of Supplier providing such professional
liability insurance. Liability insurance coverage shall be occurrence-based and shall be primary and not excess to or
contributing with any insurance or self-insurance maintained by System Owner.


 


Section 11.1.2        The insurance to be maintained
by Supplier is as follows:


 


(a)            All-Risk
Builder’s Risk, insuring Supplier, Subcontractors, System Owner, Host Customer and Lender(s) as their interests may
appear, covering physical elements of the System and all related installation costs from the physical loss or damage caused
by perils covered by a standard All-Risk form or equivalent coverage, to include (if available at reasonable commercial
rates) flood, wind and earthquake. Such insurance shall also provide coverage for materials and equipment in transit to or
from the Site and System coverage for System Start-Up and testing. The limit of liability shall be the full replacement cost
of the System. Supplier’s All-Risk Builder’s Risk coverage shall continue, with respect to each System subsystem
until the passage of care, custody and control of the System to System Owner.


 


(b)            Workers’
compensation insurance covering Supplier’s and all Subcontractors’ employees as required by applicable Law and
employer’s liability insurance with a limit of $1,000,000.


 


(c)             Professional
liability (errors & omissions) with a limit of $2,000,000 per occurrence. If this insurance is written on a “claims
made” basis, then the policy shall provide “tail coverage” for claims asserted within three years after the
earlier of the date of Final Completion or the date of termination of this Agreement.


 


(d)            Automobile
bodily injury and property damage liability insurance covering automobiles owned or hired by Supplier and all Subcontractors
with a limit for bodily injury and property damage of $1,000,000 per occurrence.


 


(e)            
Comprehensive General Liability with a combined single limits for Bodily Injury and Property Damage with the following minimum
limits:


 


	Each Occurrence	 	$	2,000,000	 
	General Aggregate	 	$	3,000,000	 
	Products/Completed Operations	 	$	2,000,000	 
	Personal Injury (Advertising Injury Excluded)	 	$	1,000,000	 
	Medical Payments, Each Person	 	$	5,000	 
	Fire Legal	 	$	300,000	 



 






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Such coverage to include Broad
Form Property Damage, Independent Supplier’s Coverage, Blanket Contractual Liability and no exclusions for excavation, collapse
and underground (XCU). This coverage shall also be endorsed to include coverage for products, completed operations, and independent
contractors. Such policy or policies of insurance shall include coverage for claims of any persons as a result of an incident directly
or indirectly related to the employment of such persons by Supplier or by any other persons.


 


(f)             Umbrella excess liability coverage with
an aggregate limit of $5,000,000. This policy or policies shall be specifically endorsed to be excess of the required coverages
in clauses (d) and (e) above.


 


Section 11.1.3       All insurance policies procured
under this Section 11.1 shall be endorsed to include a waiver of subrogation against System Owner and Lender(s) and shall be endorsed
to indicate that the same shall not be cancelled, materially changed or amended to reduce coverage without giving System Owner
and Lender(s) not less than thirty (30) days prior notice.


 


Section 11.1.4       System Owner, its Affiliates,
Host Customer and Lenders (together with each of their respective employees, agents, officers and directors, and with respect to
Host Customer only, the board members comprising Host Customer from time to time) shall be named as additional insureds with respect
to Supplier’s activities under this Agreement under the coverages required by this Section 11.1, except for Workers Compensation
policies. Supplier shall obtain such insurance in addition to that specified in Section 11.1.2 and in such limits as may be specifically
required by System Owner from time to time hereunder, at System Owner’s sole expense.


 


Section 11.2          Assignment
of Proceeds.


 


In the event
of any casualty or other insured loss affecting the System or any portion of the System or the Work, and if in such event Supplier
does not replace or restore the System or the Work, Supplier shall assign the related insurance claim and proceeds to System Owner.


 


Section 11.3          Insurance
Certificates.


 


On or before
the Commencement Date, Supplier shall deliver to System Owner certificates of insurance signed by Supplier’s insurance broker
evidencing the insurance coverage required under this Article XI, and shall provide a similar certificate evidencing renewal of
such coverage on at least the same terms and conditions as originally required for this Agreement not less than thirty (30) days
prior to the expiration date of any such policy.


 


Section 11.4          System Owner Insurance.


 


Section 11.4.1       System Owner shall procure at
its own expense and maintain in full force and effect, while this Agreement is in effect, comprehensive general liability insurance
for bodily injury and property damage, in an amount not less than one million dollars ($1,000,000) combined single limit to cover
System Owner’s employees and equipment while on the Premises. On or before the Commencement Date, System Owner shall deliver
to Supplier a certificate of insurance evidencing such insurance coverage.


 




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Section
11.4.2      Supplier’s insurance coverage
shall be primary coverage without right of contribution from any other insurance carried by System Owner.
Insurance maintained by System Owner is for the exclusive benefit of System Owner; provided that, until Substantial
Completion, all policies procured by System Owner shall be endorsed to include a waiver of subrogation against Supplier.


 


ARTICLE XII

TITLE; RISK OF LOSS; INTELLECTUAL PROPERTY


 


Section 12.1          Clear
Title.


 


Section 12.1.1       No
Encumbrances. Supplier warrants that legal title to and ownership of all materials and equipment shall be free and clear of
any and all liens, claims, security interests or other encumbrances when title thereto passes to System Owner.


 


Section 12.1.2       Passing
of Title. Title to all material and equipment provided by Supplier as part of the System shall pass to System Owner upon the
earlier of (a) the date of the Bill of Sale, (b) Substantial Completion and (c) the termination of this Agreement. Supplier shall
execute instruments and documents effecting such transfer upon request by System Owner. Pending the passage of title, Supplier
shall, upon request by System Owner, (y) grant a security interest to System Owner or its designee(s) in any such material and
equipment for which Supplier has received payment and (z) execute and file (or authorize the execution and filing of) any document
or instruments reasonably required to create and perfect such security interest.


 


Section 12.1.3       Due
Care. Supplier shall retain care, custody and control of the System, including System Owner Supplied Equipment, and shall
exercise due care with respect thereto until the earlier of Substantial Completion or termination of this Agreement.


 


Section 12.1.4       Documents.
Supplier shall prepare and deliver to System Owner such assignments, purchase orders for the photovoltaic panels, inverters
and mounting and monitoring systems, bills of sale or other documents as reasonably requested by System Owner to evidence transfer
of title as set forth in this Section 12.1, and, as of the earlier of Substantial Completion or termination of this Agreement,
shall deliver to System Owner all warranties, manuals, operating procedures, evidence of Government Approvals, Host Utility Documents,
licenses for use of the data acquisition system, and all other documentation relating to the Work and the System, including the
System Manuals.


 


Section 12.2          Supplier’s
Drawings.


 


Title to
all Design Work Product, drawings, Specifications, documents, and engineering and other data furnished or to be furnished by Supplier
in connection with the Work shall pass to System Owner upon System Owner’s payment for Work related thereto, but Supplier
may retain a copy of all such documents; provided, that Supplier shall retain its intellectual property rights in the Proprietary
Property.


 




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Section 12.3          Risk of Loss.


 


Supplier
shall bear the risk of loss with respect to, the System and all materials, equipment and Start-Up spare parts (and other spare
parts if procured by Supplier) in connection with the Work, including the System Owner Supplied Equipment, whether or not incorporated
therein or located on or off the Site, until Final Completion, without regard to any payments made by System Owner to Supplier.


 


Section 12.4          Intellectual
Property.


 


Section
12.4.1      The Specifications and certain technology, drawings,
designs, details, databases, data, software, and other property delivered by Supplier hereunder and reasonably identified as
proprietary, whether or not incorporated in the Specifications or into the System, (collectively, the “Proprietary
Property”) are and shall at all times remain the sole and exclusive property of Supplier. Effective upon
Substantial Completion or the earlier termination of this Agreement, Supplier grants System Owner a royalty-free license, in
perpetuity, to use the Proprietary Property solely for the operation, maintenance and repair of the System, but not for
resale, leasing or expansion of such Proprietary Property, except in conjunction with a permitted assignment of this
Agreement or sale of the System, or for any other project or any other commercial purpose.


 


Section
12.4.2      Supplier warrants that the Work performed and System
Owner’s permitted use of the Proprietary Property provided hereunder shall not constitute an infringement of any
trademark, patent or copyright or misappropriation or misuse of any trade secret.


 


Section
12.4.3      If the Work performed hereunder by Supplier, or any part
thereof, is held by a court of competent jurisdiction to constitute infringement of any patent or copyright, or
misappropriation or misuse of any trade secret, and their use by System Owner is prohibited or restricted by legal order,
Supplier shall, at System Owner’s option and at no cost to System Owner, either (a) procure for System Owner the right
to continue using the System or any part thereof or (b) modify the System or any part thereof so that it no longer
constitutes an infringement, misappropriation or misuse without affecting the performance of the System.


 


ARTICLE XIII

INDEMNIFICATION


 


Section 13.1          Indemnification.


 


Section 13.1.1       Supplier’s
Indemnity.


 


(a)              General.
To the fullest extent permitted by Law, Supplier shall defend, indemnify and hold harmless System Owner and its respective officers,
directors, employees, agents, Affiliates and representatives (“System Owner Indemnitees”) from and against
any and all claims, demands, suits, liabilities, causes of action, losses, expenses, damages, fines, penalties, court costs and
reasonable attorneys’ fees (collectively, “Claims”) arising out of claims for personal injury, claims
of third parties, and any and all fines or penalties imposed by any Governmental Authority, in each case to the extent they arise
or result from, or are occasioned by or in connection with (i) performance of Supplier’s obligations hereunder; (ii) any
negligent, reckless or intentionally wrongful act or omission to act by Supplier, any Subcontractor, anyone directly or indirectly
employed or contracted by any of them, or anyone for whose acts they may be liable; or (iii) violations of Laws by Supplier or
any Subcontractor; provided, that this indemnification shall not apply to any Claim to the extent of the grossly negligent
or intentionally wrongful acts or omissions of any System Owner Indemnitee. Supplier’s indemnification, defense and hold
harmless obligation shall not be limited by insurance coverages and shall survive the termination or expiration of this Agreement.


 




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(b)              Intellectual
Property. Supplier shall, at its expense, defend, indemnify and hold harmless any System Owner Indemnitee against any Claims
brought against or threatened to be brought against System Owner based on an allegation that any of the Work performed hereunder
constitutes an infringement of any trademark, patent or copyright or misappropriation or misuse of any trade secret.


 


Section 13.1.2       System
Owner’s Indemnity.


 


To the fullest extent
permitted by Law, System Owner shall defend, indemnify and hold harmless Supplier and its officers, directors, employees, agents,
Affiliates and representatives (“Supplier Indemnitees”) from and against any and all Claims arising out of
personal injury and third party property damage and any and all fines or penalties imposed by any Governmental Authority, in each
case to the extent they arise or result from, or are occasioned by or in connection with (a) any breach of System Owner’s
obligations hereunder; (b) any negligent, reckless or intentionally wrongful act or omission to act by System Owner or by anyone
directly or indirectly employed by System Owner; or (c) violations of laws by System Owner; provided, that this indemnity
shall not apply to any Claim to the extent of the grossly negligent or intentionally wrongful acts or omissions of any Supplier
Indemnitees or any Subcontractor or any other party for whom any of them may be liable. This indemnification, defense and hold
harmless obligation shall not be limited by insurance coverages and shall survive the termination or expiration of this Agreement.


 


Section 13.1.3      Notice.
Each Party shall promptly notify the other Party of any Claims or threatened claim, demand or proceeding in respect of which it
is or may be entitled to indemnification under this Section 13.1. Such notice shall be given as soon as reasonably practicable
after the relevant Party becomes aware of the Claims or threatened claim, demand or proceeding.


 


Section 13.1.4       Defense
of Claims.


 


(a)          The
Indemnifying Party shall be entitled, in its sole discretion, to assume and control the defense of such claim, action, suit
or proceeding at its expense with counsel of its selection, provided (i) it gives prompt notice of its intention to do so to
the Indemnitee and reimburses the Indemnitee(s) for the reasonable costs and expenses incurred by the Indemnitee prior to the
assumption by the Indemnifying Party of such defense and (ii) such counsel is acceptable to the Indemnitee, in the exercise
of its reasonable judgment.


 




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(b)          Unless
and until the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnitee and assumes control of the
defense of a claim, suit, action or proceeding in accordance with this Section 13.1.4, the Indemnitee shall have the right, but
not the obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by
any third party alleged or asserted against the Indemnitee in respect of, resulting from, related to or arising out of any matter
for which it is entitled to be indemnified hereunder, and the reasonable costs thereof shall be subject to the indemnification
obligations of the Indemnifying Party hereunder.


 


(c)          Following
the acknowledgement of the indemnification and the assumption of the defense by the Indemnifying Party, the Indemnitee shall have
the right to employ its own counsel and such counsel may participate in such claim, suit, action or preceding, but the fees and
expenses of such counsel shall be at the expense of such Indemnitee, when and as incurred, unless (i) the employment of counsel
by such Indemnitee has been authorized in writing by the Indemnifying Party, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Indemnifying Party and the Indemnitee in the conduct of the defense of such
action, (iii) the Indemnitee shall have reasonably concluded that counsel selected by the Indemnifying Party is not acceptable
or (iv) the Indemnitee shall have reasonably concluded and specifically notified the Indemnifying Party either that there may be
specific defenses available to it that are different from or additional to those available to the Indemnifying Party or that such
claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement.


 


Section 13.2          Liens
and Claims.


 


Supplier
shall indemnify and hold harmless System Owner, Host Customer, and Lenders and defend each of them from all liens and claims filed
or asserted by Supplier’s Subcontractors or other third parties claiming under Supplier against System Owner, the Host Customer,
the System or the Premises for services performed or materials and equipment furnished to or by Supplier or its Subcontractors
by such third parties, and from all Claims arising out of all such liens or claims. Supplier shall, at no cost to System Owner
or Host Customer, promptly release, discharge or otherwise remove any such lien or claim by bonding, payment or otherwise and shall
notify System Owner of such discharge, release or removal. If Supplier does not timely cause any such lien or claim to be discharged,
released or otherwise removed by payment or bonding or other method approved in advance by System Owner, System Owner shall have
the right (but not the obligation) to pay all sums necessary to obtain releases and discharges (including the settlement of any
lien or claim). In such event, System Owner shall have the right to deduct all amounts so paid (plus reasonable attorneys’
fees) from amounts due Supplier hereunder; and upon reasonable demand by System Owner, Supplier shall reimburse System Owner for
such amounts not deducted. Supplier shall use commercially reasonable efforts to cause its Major Subcontractors to execute an indemnification
agreement in favor of the Indemnitees in substantially the same form as this Section 13.2 prior to the start of their performance
hereunder.


 




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ARTICLE XIV

LIABILITIES OF THE PARTIES


 


Section 14.1          Waiver
of Certain Damages.


 


Neither
Party nor any of their respective partners, officers, directors, agents, Subcontractors, vendors or employees shall be liable to
the other Party hereunder for any special, consequential (other than actual or direct damages, to the extent such damages are or
may be considered “consequential”) or indirect loss or damage arising out of this Agreement, whether such loss or damage
arise in contract, tort (including negligence), strict liability, warranty, statute or otherwise, including loss of revenues, loss
of profit, cost of capital, loss of goodwill, increased operating costs or any other special damages; provided, that the
foregoing limitation shall not affect claims based on, and shall be exclusive of costs and liabilities arising out of either Party’s
liability (a) to the extent related to a Party’s indemnity obligations pursuant to this Agreement or otherwise specifically
provided herein, (b) for breach of confidentiality obligations or (c) for liquidated damages that are provided for herein. The
Parties further agree that the waivers and disclaimers set forth above shall survive the expiration, termination or cancellation
of this Agreement.


 


Section 14.2          Limitation
of Liability.


 


It is specifically
understood and agreed that there shall be absolutely no personal liability on the part of any of the officers, directors, employees
or members of the Parties for the payment of any amounts due hereunder, or the performance of any obligations hereunder, and each
Party shall look solely to the assets of the other Party for the satisfaction of each and every remedy of such Party in the event
of any breach by the other Party. In furtherance of the foregoing, each Party agrees that it shall neither seek nor obtain, nor
be entitled to seek or obtain, any deficiency or other judgment against any of the officers, directors, employees or members of
the other Party for any action or inaction on the part of any member or its respective officers, employees, controlling persons,
executives, directors, agents, authorized representatives or Affiliates, and such Party therefore releases such persons from such
claims.


 


ARTICLE XV

CONFIDENTIALITY


 


Section 15.1          General.


 


Except as
required under applicable Law, each Party shall hold in confidence all documents and other information, whether technical or commercial,
relating to this Agreement or the design, financing, construction, ownership, operation or maintenance of the System that is of
a confidential nature and that is supplied to it by or on behalf of the other Party. The Party receiving such documents or information
shall not publish or otherwise disclose them or use them for its own purposes (otherwise than as may be required by it, its professional
advisers, or potential or actual lenders or investors, or potential or actual Subcontractors to perform its obligations or to assert
its rights under this Agreement). Each Party further agrees, to the extent requested by the supplier of such information, to require
its Subcontractors, vendors, suppliers and employees to enter into appropriate nondisclosure agreements relative to such confidential
information, prior to the receipt thereof. Notwithstanding any provision hereof to the contrary, to the extent reasonably required,
confidential information may be made available to potential debt and equity investors and their respective advisors as necessary
subject to a mutually acceptable confidentiality agreement.


 




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Section 15.2          Exceptions.


 


Section
15.2.1          The provisions of this Article XV shall not apply to
information within any one of the following categories or any combination thereof:


 


(a)          Information
that was in the public domain prior to the receiving Party’s receipt or that subsequently becomes part of the public
domain by publication or otherwise, except by the receiving Party’s wrongful act; or


 


(b)          Information
that the receiving Party can demonstrate was in its possession prior to receipt thereof from the disclosing Party and not
otherwise subject to an obligation of confidentiality; or


 


(c)          Information received
by a Party from a third party having no obligation of secrecy with respect thereof.


 


Section
15.2.2      Notwithstanding anything to contrary set forth herein,
each Party acknowledges that the other Party (the “Public Party”) is or may become a publicly-held
company, and in conjunction with its duties as a publicly held company, such Public Party may from time to time be required
to report to the public through press releases or filings with a Governmental Authority the signing of contracts and
agreements or other such activities, and, to the extent consistent with applicable Law, the Public Party shall have given the
other Party advance notice and an opportunity to review and provide comment on such releases or filings. On the Public
Party’s request, the other Party shall (a) provide a written description of information about such Party as it should
appear in such press releases or filings, or (b) provide written notice that such Party does not want its name to appear in
all or certain press releases or filings, with which the Public Party shall comply to the extent permitted under Law.


 


Section
15.2.3       Notwithstanding anything to the contrary set forth herein
or in any other agreement to which the Parties are parties or by which they are bound, the obligations of confidentiality
contained herein and therein, as they relate to the transaction, shall not apply to the U.S. federal tax structure or U.S.
federal tax treatment of the transaction, and each Party (and any employee, representative, or agent of any Party) may
disclose to any and all persons, without limitation of any kind, the U.S. federal tax structure and U.S. federal tax
treatment of the transaction. The preceding sentence is intended to cause the transaction not to be treated as having been
offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue Code and shall be construed in a manner
consistent with such purpose. In addition, each Party acknowledges that it has no proprietary or exclusive rights to the tax
structure of the transaction or any tax matter or tax idea related to the transaction.


 




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Section 15.3          Publicity.


 


Subject
to Section 15.2.2, each Party shall not, without the prior written approval of the other Party, which shall not be unreasonably
withheld, (a) advertise or otherwise publicize the existence or terms of this Agreement or any other aspect of the relationship
between the Parties, or (b) use the name or any trade name, trademark or service mark or other brand imagery belonging to the other
Party in press releases or in any form of advertising.


 


Section 15.4          Required Disclosure.


 


Either Party,
if required by Law or in the course of administrative or judicial proceedings, to disclose information that is otherwise required
to be maintained in confidence pursuant to this Article XV may make disclosure notwithstanding the provisions of this Article XV;
provided, that the Party making the disclosure shall immediately notify the other Party of the requirement and the terms
thereof and shall cooperate to the maximum extent practicable to minimize the disclosure of the information. The Party disclosing
such information shall use reasonable efforts, at the other Party’s cost, to obtain proprietary or confidential treatment
of such information by the third party to whom the information is disclosed, and to the extent such remedies are available, shall
use reasonable efforts to seek protective orders limiting the dissemination and use of the information. Moreover, this Agreement
does not alter the rights of either Party to object to the rule, regulation, order or proceedings requiring such disclosure.


 


ARTICLE XVI

SUSPENSION OF WORK


 


Section 16.1          Suspension
by System Owner.


 


System Owner
may at any time or from time to time, and for any reason or for no reason, suspend performance of the Work or any portion thereof
by giving notice to suspend (a “Suspension Notice”) to Supplier. Supplier shall thereafter take all reasonable
measures to implement such suspension but may complete such items of Work that would be unsafe or imprudent to immediately suspend.
Such suspension shall continue for the period specified in the Suspension Notice (the “Suspension Period”).
At any time during the Suspension Period, System Owner may require Supplier to resume performance of the Work.


 


Section 16.2        Suspension
by Supplier.


 


Without
limitation of Supplier’s rights pursuant to Article XVII, in the event of a default by System Owner in making a payment required
under Article IX, Supplier may suspend performance of all or any portion of the Work by delivering a Suspension Notice to System
Owner, but only if (a) such payment default has continued for a period of ten (10) consecutive days, (b) such default is in respect
of a payment amount that is not in dispute and (c) the failure by System Owner to make such payment is not an exercise by System
Owner of any of its rights under this Agreement. Any suspension under this Section 16.2 shall begin on the later of (x) the eleventh
(11th) day of continued nonpayment by System Owner or (y) the date of delivery of the Suspension Notice to System Owner, unless
System Owner shall have cured such payment prior to the later of the dates described in (x) and (y) hereof, and shall terminate
upon receipt by Supplier of the payment referred to in the Suspension Notice, at which time Supplier shall immediately recommence
performance of the Work.


 




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Section 16.3          Effects of Suspension.


 


Section 16.3.1      Costs.
System Owner shall be responsible for all reasonable and documented costs incurred by Supplier and its Subcontractors or irrevocably
obligated to be incurred as part of the Work through the date of Supplier’s issuance or receipt, as applicable, of the Suspension
Notice, including any reasonable and documented demobilization costs incurred to suspend Work, up to the applicable “Suspension
Amount Cap” as set forth in this Section 16.3.1. If Supplier’s issuance or receipt, as applicable, of the Suspension
Notice occurs prior to Substantial Completion, the Suspension Amount Cap shall be the Substantial Completion Payment. If Supplier’s
issuance or receipt, as applicable, of the Suspension Notice occurs following Substantial Completion, the Suspension Amount Cap
shall be the Final Payment. In addition, notwithstanding anything to the contrary set forth herein, (a) if as a result of any
suspension pursuant to Section 16.1 or 16.2 supplier’s costs hereunder increase then System Owner shall be responsible for
such reasonable and documented additional costs; and (b) System Owner shall be responsible for all reasonably documented remobilization
costs incurred to resume Work and end the suspension pursuant to Section 16.1 or 16.2.]


 


Section 16.3.2       Schedule.
Without duplication of any Change Order, any suspension under Section 16.1 or 16.2 shall extend the Construction Schedule
and any other schedule affected by such suspension on a day-for-day basis.


 


ARTICLE XVII

TERMINATION


 


Section 17.1          Termination
By System Owner.


 


Section
17.1.1       System Owner may terminate this Agreement upon fifteen (15)
days prior written notice to Supplier in the event any of the Conditions to Notice to Proceed set forth in Article III is not
satisfied or waived by the applicable Party within sixty (60) days after the Effective Date.


 


Section
17.1.2       System Owner may terminate this Agreement upon
Supplier’s material breach of this Agreement, if such material breach has not been cured within fifteen (15) days after
notice of such material breach. Without limiting the foregoing, and notwithstanding any provision of this Agreement to the
contrary, it shall be a material breach by Supplier, if (a) Supplier or any Major Subcontractor liquidates, or takes any
action to cause or to permit its liquidation, or voluntarily or involuntarily files or has filed against it a bankruptcy or
other similar petition, enters into an assignment of its assets for the benefit of its creditors, or otherwise becomes
insolvent or is unable to pay its debts as they become due, or (b) the Performance and Payment Bond Issuer (i) liquidates, or
takes any action to cause or to permit its liquidation, or voluntarily or involuntarily files or has filed against it a
bankruptcy or other similar petition, enters into an assignment of its assets for the benefit of its creditors, or otherwise
becomes insolvent or is unable to pay its debts as they become due or (ii) in any way cancels or repudiates the Performance
and Payment Bond.


 




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Section
17.1.3       In the event that System Owner terminates or cancels this
Agreement pursuant to this Section 17.1, Supplier will (a) cease Work and vacate the Premises in an orderly manner and
otherwise in accordance with this Agreement, (b) take the actions necessary, or that System Owner may direct, for the
protection and preservation of the Site, the Work and the System, (c) assign to System Owner or its designee all right, title
and interest in contracts, including Subcontracts, purchase orders, warranties and guaranties related to the Work and the
System and deliver to System Owner complete and unredacted copies of all such assigned contracts, Subcontracts, purchase
orders, warranties and guaranties, (d) deliver and cause the Subcontractors to deliver waivers of lien substantially in the
form of Exhibit N to establish that the Work, the System and the Premises are free from any claims, liens, security
interests or encumbrances arising out of or in connection with performance by Supplier or any Subcontractor of the Work, (e)
confirm in writing the assignment hereunder of all Environmental Credits to System Owner, (f) assign or transfer, to the
extent assignable or transferrable, all issued Government Approvals, if any, then held by Supplier pertaining to the
System and (g) deliver to System Owner the System Manuals and Design Work Product, and all information in Supplier’s
possession relating to the Work and the System requested by System Owner


 


Section 17.2          Termination
By Supplier


 


Section
17.2.1      Supplier may terminate this Agreement in the event a
Suspension Period continues longer than forty-five (45) days. In such event, System Owner shall compensate Supplier for all
Work performed up to the start of the Suspension Period, plus, without duplication of amounts paid pursuant to Section
16.3.1, all reasonable and documented demobilization and cancellation costs incurred by Supplier.


 


Section 17.2.2       Supplier
may terminate this Agreement prior to Final Completion for good cause, consisting of System Owner’s material breach of this
Agreement, if such material breach has not been cured within fifteen (15) days after notice of such material breach.


 


Section
17.2.3       In the event that Supplier terminates or cancels this
Agreement pursuant to this Section 17.2, Supplier will (a) cease Work and vacate the Premises in an orderly manner and
otherwise in accordance with this Agreement, (b) take the actions necessary, or that System Owner may direct, for the
protection and preservation of the Site, the Work and the System, (c) assign to System Owner or its designee all right, title
and interest in contracts, including Subcontracts, purchase orders, warranties and guaranties related to the Work and the
System, and deliver to System Owner complete and unredacted copies of all such assigned contracts, Subcontracts, purchase
orders, warranties and guaranties, (d) deliver waivers of lien substantially in the form of Exhibit N to
establish that the Work, the System and the Premises are free from any claims, liens, security interests or encumbrances
arising out of or in connection with performance by Supplier or any Subcontractor of the Work, other than to the extent any
such liens result from the System Owner’s failure to pay undisputed amounts due to Supplier hereunder, (e) confirm in
writing the assignment hereunder of all Environmental Credits to System Owner, (f) assign or transfer, to the extent
assignable or transferrable, all issued Government Approvals, if any, then held by Supplier pertaining to the System and (g)
deliver to System Owner the System Manuals and Design Work Product, and all information in Supplier’s possession
relating to the Work and the System requested by System Owner.


 




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Section 17.3          Effect
of Termination.


 


Section 17.3.1       Upon
termination of this Agreement pursuant to Section 17.1.2 or 17.2.3, and subject to Article XIX, each Party shall have all remedies
and rights available to it, whether at law or in equity, under applicable Law and under this Agreement and any other agreement
between the Parties.


 


Section
17.3.2       Termination of this Agreement shall not relieve Supplier or
System Owner of any obligation hereunder which survives termination or expiration hereof pursuant to Section 20.6.


 


Section 17.3.3       Supplier
(a) acknowledges that System Owner, following any termination of this Agreement prior to Final Completion pursuant to Section
17.1, may proceed to complete the Work with such Person or Persons, and on such terms and conditions, as System Owner, in its
sole discretion, may determine, and (b) irrevocably waives, to the fullest extent permitted by applicable Law, any right it may
possess, now or at any time in the future, to contest, and shall not contest, System Owner’s right to so proceed to complete
the Work.


 


Section
17.3.4       Without limitation of Section 17.3.1, Supplier shall be
liable for the amount of the total expenses reasonably incurred by System Owner to cause the Work to be completed pursuant to
Section 17.3.3 in excess of the amount of the Contract Price remaining unpaid at the time of termination, including all
commercially reasonable amounts charged by any replacement contractor to finish the Work.


 


ARTICLE XVIII

FORCE MAJEURE


 


Section 18.1          Force
Majeure Event.


 


Section
18.1.1       Neither System Owner nor Supplier shall be considered to be
in default or breach in the performance of any of its obligations under this Agreement, to the extent that performance such
obligation is prevented or delayed by a Force Majeure Event.


 


Section
18.1.2       If a Party is prevented or delayed in the performance of
any such obligation by a Force Majeure Event, such Party shall as soon as reasonably possible provide notice to the other
Party of the circumstances preventing or delaying performance and the expected duration thereof. Such notice shall be
confirmed in writing as soon as reasonably possible. The Party affected by a Force Majeure Event shall promptly supply such
other available information about the Force Majeure Event and its cause as reasonably requested by the other Party and shall
promptly supply such other information about the Force Majeure Event as may become available during the duration of the Force
Majeure Event.


 


Section
18.1.3       The Party affected by a Force Majeure Event shall use
commercially reasonable efforts to remove or repair the cause of the Force Majeure Event and shall resume performance of its
obligations as soon as reasonably practicable. The suspension of performance by a Party due to a Force Majeure Event shall be
of no greater scope and no longer duration than to the extent necessary by reason of the Force Majeure Event. The affected
Party shall use commercially reasonable efforts to promptly mitigate or remedy its inability to perform its obligations under
this Agreement. A Force Majeure Event shall not excuse compliance with any Law, except to the extent provided under the
applicable Law.


 




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Section 18.2          Termination for Extended Force Majeure.


 


Either Party
shall be entitled to terminate this Agreement upon sixty (60) days prior written notice to the other Party if any Force Majeure
Event affecting the other Party has been in existence for a period of ninety (90) consecutive days or longer, unless such Force
Majeure Event ceases prior to the expiration of such 60-day period.


 


ARTICLE XIX

DISPUTE RESOLUTION


 


Section 19.1          Amicable
Settlement.


 


The Parties
shall attempt in good faith to resolve all disputes arising in connection with the interpretation or application of the provisions
of this Agreement or in connection with the determination of any other matters arising under this Agreement by mutual agreement.


 


Section 19.2          Mediation.


 


If a dispute
arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be resolved by the Parties pursuant
to Section 19.1, the Parties agree to use good faith efforts to settle the dispute by mediation administered by the American Arbitration
Association under its Commercial Mediation Rules before resorting to arbitration pursuant to Section 19.3.


 


Section 19.3          Arbitration.


 


Section
19.3.1       Any disputes arising under this Agreement which cannot be
settled by the Parties pursuant to Sections 19.1 and 19.2 shall be resolved in accordance with the Commercial Arbitration
Rules and Mediation Procedure of the American Arbitration Association, and judgment upon any award may be entered in any
court having jurisdiction. The arbitration shall be conducted in the State of New Jersey before a single arbitrator appointed
by the American Arbitration Association. No arbitrator shall be a past or present employee or agent of, or consultant or
counsel to, either Party or any Affiliate of either Party, unless such restriction is waived in writing by the other Party.
Arbitration shall commence no later than sixty (60) days after written notice of the dispute to the other Party. Any
arbitration commenced hereunder shall be completed within sixty (60) days of the appointment of the arbitrator, absent
agreement of the Parties to an extension of such period, and in the event any arbitration is not completed within
such period, each Party may pursue any rights and remedies as each may have, whether hereunder or in law or at equity. The
Parties shall not be entitled to discovery; provided, that the arbitrator may permit document discovery upon a showing
of good cause. All direct testimony may be offered by way of affidavit. The Party submitting an affidavit shall make the
affiant available for cross-examination before the arbitrator. Notwithstanding anything is this Agreement to the contrary,
either Party may bring an action for injunctive relief in any court of competent jurisdiction at any time, and any judgment
entered against either of the parties in any proceeding hereunder may be entered and enforced in any court of competent
jurisdiction.


 




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Section
19.3.2       The Parties shall each bear its respective costs and
expenses relating to the arbitration and shall share the costs of the arbitrator and fees payable to American Arbitration
Association, unless the arbitrator determines on motion of one Party that one or the other Party should bear a greater
portion or all of the costs of the arbitration.


 


ARTICLE XX

MISCELLANEOUS


 


Section 20.1          Record
Retention.


 


Section 20.1.1       Supplier agrees to retain for a
period of five (5) years from the date Supplier receives the Final Payment all records relating to its performance of the Work,
and to contract with all Major Subcontractors to retain for the same period all their records relating to the Work. Following such
period, Supplier shall have the right to destroy such records but only after giving System Owner reasonable notice and the opportunity
to make copies of such documentation or information, at its sole cost and expense. Notwithstanding the foregoing, Supplier (and
any Subcontractors) shall neither be required to retain such documentation nor to provide notice to System Owner prior to its destruction
upon the expiration of seven (7) years from the date Supplier receives Final Payment.


 


Section 20.1.2       Notwithstanding anything herein
to the contrary, upon System Owner’s request and at System Owner’s sole cost for any request after one (1) year from
the date of Final Completion, Supplier shall promptly provide System Owner with records regarding (a) quantities, descriptions,
and costs of each item provided in performance of the Work; and (b) costs of installing such equipment, in sufficient detail and
in such a format as a Governmental Authority or governmental agency may require in connection with any tax return, the ITC, the
ITC Cash Grant or other tax incentive or program administered by a Governmental Authority.


 


Section 20.1.3      Each Party shall reasonably cooperate
with the other Party in connection with (a) the reporting of any taxes payable with respect to the Work; and (b) any assessment,
demand or inquiry of Governmental Authority, refund claim or proceeding relating to Taxes potentially payable with respect to the
Work. Supplier shall require its Subcontractors provide to Supplier and Supplier shall promptly provide to System Owner information
and documentation Supplier or System Owner may reasonably request for purposes of complying with this Section 20.1. Supplier shall
retain, and shall require its Subcontractors to retain, copies of such documentation that supports the information provided by
Supplier pursuant to this Section 20.1 including Subcontracts, invoices (together with backup detail and proof of payment by Supplier),
until the later to occur of the expiration of the limitations period for assessment of Tax or the expiration of the limitations
period for any ITC, accelerated depreciation, bonus depreciation, the ITC Cash Grant or other tax incentive that is claimed by
System Owner, or System Owner’s direct or indirect owners or Lenders, in respect of the System, as any such limitations periods
may be extended by any agreements with the Governmental Authority or by the operation of any statutory tolling provisions. Records
retained by Supplier and the Subcontractors shall include documentation supporting the date of delivery of permanent equipment
to the Site and the provision of services that are part of the Work and the date that costs are paid or incurred with respect to
equipment, materials, supplies and services in connection with the Work. Supplier shall require that its Subcontracts effect the
provisions of this Section 20.1.3 so that documentation supporting the information provided pursuant to the other provisions of
this Section 20.1 is available for tax audit or other tax-related purposes and to support any application for the ITC Cash Grant
or other incentive for which the System or System Owner (or its Lenders) may be eligible; provided that Supplier and its Subcontractors
shall be required to provide System Owner with the documentation retained under the foregoing provisions of this Section 20.1.3
only if and to the extent required (x) to respond to a request from a Governmental Authority, (y) to comply with the requirements
for establishing eligibility of the System or System Owner (or its Lenders) for the ITC Cash Grant or other incentive or benefit
or (z) in connection with a tax audit or other challenge by a Governmental Authority to the eligibility of the System or the System
Owner (or its Lenders) or the ITC Cash Grant or other incentive or benefit. Without limitation of the foregoing, the Parties will
cooperate with each other in connection with establishing the eligibility of the Work and the System or System Owner (or its Lenders)
or portions thereof for any tax credit, tax incentive or the ITC Cash Grant, including by providing all documentation and information
reasonably within its possession or to which it has access, required to establish such eligibility.


 




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Section 20.2          Assignment.


 


Neither
Party shall assign or otherwise transfer all or any portion of its rights or obligations under this Agreement without the prior
written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed; provided, that,
without such consent (a) System Owner may transfer or assign all or substantially all of its rights and obligations hereunder to
an Affiliate or successor, (b) System Owner may collaterally assign to Lenders or other Persons in connection with a financing
of the System all or any part of System Owner’s rights or obligations under this Agreement, (c) Supplier may collaterally
assign its right to receive payments and other receivables hereunder (including any holdback, retainage, progress payments, bonus
payments, damage payments and payments under change orders) in connection with a financing, and (d) Supplier may transfer or assign
all or part of its rights and obligations hereunder to an Affiliate or successor, provided that such assignment shall not relieve
Supplier of its obligations as primary obligor hereunder. Unless expressly agreed, no permitted assignment hereunder shall relieve
the assigning Party of its obligations under this Agreement. A Party’s failure to give consent for an assignment under this
Section 20.2 shall not be deemed unreasonable if the proposed assignee is less creditworthy than the assigning Party’s
creditworthiness as of the Commencement Date. A Party making a permitted assignment or transfer pursuant to this Section 20.2 shall
deliver notice of any such transfer or assignment to the other Party as soon as reasonably practicable. Each Party agrees to execute
such reasonable consents to assignment and other documents, and to provide such information, as is requested by the other Party
and reasonably required in connection with any permitted assignment pursuant to this Section 20.2.


 


Section 20.3          Financing.


 


Supplier
shall cooperate with System Owner in obtaining financing for the System, and shall promptly consent in writing to the collateral
assignment of this Agreement and provide other acknowledgments, certifications and reports, and comply with such other obligations
(including ongoing acknowledgments, estoppels, certifications, reports and obligations) in respect of this Agreement as may be
reasonably requested by any Lender. In addition, Supplier shall cause its Subcontractors to agree to, and to comply with, the requirements
of this Section 20.3 for the benefit of Supplier, System Owner and any Lender.


 




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Section 20.4          Third Party Beneficiaries.


 


Other than
as specifically provided herein, this Agreement and each and every provision thereof are for the exclusive benefit of the Parties,
their successors and permitted assigns, and not for the benefit of any third party other than the Lenders or any other Person that
takes a security interest in the System.


 


Section 20.5          Amendments
and Modifications.


 


This Agreement may be supplemented
or amended only by mutual agreement of the Parties in writing.


 


Section 20.6          Survival.


 


Notwithstanding
any provisions herein to the contrary, any provisions necessary to give effect to the intent of the Parties hereunder after the
termination or expiration of this Agreement shall survive in full force the termination or expiration of this Agreement, including
the obligations set forth in Articles II, VIII, IX, X, XI, XIII, XIV, XV, XVII, XIX and Section 5.15, 12.4.3, 20.1, 20.6, 20.8,
20.14 and 20.17.


 


Section 20.7          No
Waiver.


 


No waiver
of any of the terms and conditions of this Agreement shall be effective unless in writing and signed by the Party against whom
such waiver is sought to be enforced. Any waiver of the terms hereof shall be effective only in the specific instance and for the
specific purpose given. The failure of a Party to insist, in any instance, on the strict performance of any of the terms and conditions
hereof shall not be construed as a waiver of such Party’s right in the future to insist on such strict performance.


 


Section 20.8          Notices.


 


Any written
notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have
been duly given on the date of receipt, and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by
facsimile (confirmed by telephone) to the Party to whom notice is to be given, (c) by a recognized overnight delivery service with
signature required, to the Party to whom notice is to be given, or (d) to the Party to whom notice is to be given, by first class
registered or certified mail, return receipt requested, postage prepaid, and addressed to the addressee at the address stated opposite
its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this
Section 20.8.


 




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	System Owner:	Nautilus Solar Lindenwold BOE, LLC
	 	C/O Nautilus Solar Energy, LLC
	 	396 Springfield Ave, 2nd floor

    Summit, NJ 07901
	 	Attention: Managing Director
	 	Fax: (484) 492-8663
	 	 
	Supplier:	CBD Energy Limited
	 	C/O Allister Burton
	 	Suite 2, Level 2, 53 Cross St 

Double Bay
	 	NSW 2028
	 	Australia
	 	Fax: +61 2 9363 9955


 


Section 20.9          Invalidity.


 


The invalidity
or unenforceability, in whole or in part, of any portion or provision of this Agreement will not affect the validity and enforceability
of any other portion or provision hereof. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement
and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable
portion or provision. Notwithstanding the provisions of the preceding sentence, should any term or provision of this Agreement
be found invalid or unenforceable, the Parties shall immediately renegotiate in good faith such term or provision of this Agreement
to effectuate the same intent and to eliminate such invalidity or unenforceability.


 


Section 20.10        Further
Assurances.


 


Each Party
shall use its reasonable efforts to implement the provisions of this Agreement, and for such purpose each, at the request of the
other, will, without further consideration, promptly execute and deliver or cause to be executed and delivered to the other such
assignments, consents or other instruments in addition to those required by this Agreement, in form and substance satisfactory
to the other, as the other may reasonably deem necessary or desirable to implement any provision of this Agreement or to arrange
financing for the System.


 


Section 20.11        Remedies.


 


Except as
expressly provided in this Agreement, no remedy conferred by any provision of this Agreement in respect of any breach or non-observance
of any of its terms is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute
or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by either
Party shall not constitute a waiver by such Party of the right to pursue any other available remedies.


 




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Section 20.12        Expenses.


 


Each Party
shall pay its own costs and expenses (including the fees and expenses of its agents, representatives, advisors, counsel and accountants)
necessary for the negotiation, preparation, execution and delivery of this Agreement. 


 


Section 20.13        Good
Faith.


 


In carrying out its obligations
and duties under this Agreement, each Party shall have an implied obligation of good faith and fair dealing.


 


Section 20.14        Governing
Law.


 


This Agreement
shall be governed by, construed and enforced in accordance with the laws of the State of New Jersey without reference to any provision
thereof which would require the application of the law of any other jurisdiction.


 


Section 20.15        Captions.


 


Titles or
captions of Sections and Articles are inserted only as a matter of convenience and for reference, and in no way define, limit,
extend, describe or otherwise affect the scope or meaning of this Agreement or the intent of any provision hereof.


 


Section 20.16        Counterpart
Execution.


 


This Agreement
may be executed and delivered by the Parties by facsimile or electronic format (including portable document format (.pdf)) in any
number of counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.


 


Section 20.17        Entire
Agreement.


 


This Agreement,
the Exhibits attached hereto, and all subsequent modification thereof made in accordance with this Agreement (all of which are
incorporated into this Agreement by this reference), constitute the entire agreement of the Parties with respect to the subject
matter hereof, superseding all prior and contemporary agreements, oral or written, shall be binding upon the Parties and their
respective successors and permitted assigns, and may be modified only in writing signed by the Party against whom enforcement is
sought.


 


Section 20.18        Time.


 


Time is of the essence in this Agreement.


 


[Signature
Page Follows]


  




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IN WITNESS WHEREOF, the parties have executed this Solar System Installation Agreement through their duly
authorized officers as of the Effective Date.





 


	 	 	NAUTILUS SOLAR LINDENWOLD BOE, LLC.
	 	 	as System Owner


 


	 	By:	/s/ NAUTILUS SOLAR LINDENWOLD BOE LLC.
	 	 	Name:
	 	 	Title:


 


	 	 	CBD ENERGY LIMITED
	 	 	as Supplier


 


	 	By:	/s/ CBD ENERGY LIMITED
	 	 	Name:
	 	 	Title:


  








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