ex10293rdarpurchaseusean






[***] Certain confidential information contained in this document, marked by brackets has been  omitted and filed separately with Securities and Exchange Commission pursuant to Rule 406 of  the Securities Act of 1933, as amended.                                                                                                                                                                                                                          EXECUTION VERSION                                                                                                                                                                                                                          THIRD AMENDED AND RESTATED                PURCHASE, USE AND MAINTENANCE AGREEMENT                                      between                         BLOOM ENERGY CORPORATION                                      as Seller                                         and                        2016 ESA PROJECT COMPANY, LLC                                      as Buyer                              dated as of October 24, 2016                        amended and restated as of June 26, 2017                    second amended and restated as of March 16, 2018                  third amended and restated as of September 26, 2018                                                                                                                                                                                  SA#6681533_17.docx  





 






                            TABLE OF CONTENTS                                                                                                                   Page    ARTICLE I. DEFINITIONS ........................................................................................................ 2        Section 1.1    Definitions............................................................................................ 2        Section 1.2    Other Definitional Provisions. ........................................................... 20  ARTICLE II. PURCHASE AND SALE .................................................................................... 21        Section 2.1    Appointment of Seller as Buyer’s EPC Provider. .............................. 21        Section 2.2    Purchase Orders. ................................................................................ 21        Section 2.3    Invoicing of Purchase Price ............................................................... 21        Section 2.4    Payment of Purchase Price. ................................................................ 23        Section 2.5    Purchase and Sale of Facilities. ......................................................... 25        Section 2.6    PPA Termination and Re-Purchase of Facilities. .............................. 25        Section 2.7    [Reserved]. ......................................................................................... 26        Section 2.8    Purchase Price Adjustment for Portfolio Price Changes. .................. 26  ARTICLE III. DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND                 BALANCE OF FACILITIES ........................................................................ 27        Section 3.1    Access to Site. .................................................................................... 27        Section 3.2    Delivery of Bloom Systems. .............................................................. 27        Section 3.3    Delivery of Balance of Facility; Installation of Bloom Systems. ...... 27        Section 3.4    Commissioning; Commencement of Operations. .............................. 29        Section 3.5    Insurance. ........................................................................................... 31        Section 3.6    Disposal; Right of First Refusal. ........................................................ 31        Section 3.7    Third Party Warranties. ...................................................................... 32        Section 3.8    Access; Cooperation. ......................................................................... 32        Section 3.9    Performance Standards. ..................................................................... 32  ARTICLE IV. FACILITY SERVICES ...................................................................................... 33        Section 4.1    In General. .......................................................................................... 33        Section 4.2    Operation and Maintenance Services. ................................................ 34        Section 4.3    Service Fees. ...................................................................................... 36        Section 4.4    Remote Monitoring; BloomConnect.................................................. 38        Section 4.5    Permits. .............................................................................................. 38        Section 4.6    Service Providers. .............................................................................. 38        Section 4.7    Rights to Deliverables. ....................................................................... 39        Section 4.8    Coordination of Relationship. ............................................................ 39        Section 4.9    Relocation or Removals of Equinix Power Modules. ........................ 40        Section 4.10   Remarketing and Redeployment Assistance. ..................................... 40        Section 4.11   Calculation of Indexed PPA Payments. ............................................. 41        Section 4.12   Indexed PPA Tolling Rate Guaranty. ................................................ 41  ARTICLE V. WARRANTIES ................................................................................................... 44        Section 5.1    Facility Services Warranty. ................................................................ 44     -i-     





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page          Section 5.2    Performance Guaranty. ...................................................................... 44        Section 5.3    Efficiency Warranty. .......................................................................... 44        Section 5.4    Performance Warranty. ...................................................................... 44        Section 5.5    Portfolio Warranty. ............................................................................ 45        Section 5.6    Exclusions. ......................................................................................... 46        Section 5.7    Portfolio Warranty Claims. ................................................................ 46        Section 5.8    Indemnification Regarding Performance Under PPAs. ..................... 49        Section 5.9    Disclaimers. ....................................................................................... 50        Section 5.10   Title. ................................................................................................... 50  ARTICLE VI. RECORDS AND AUDITS ................................................................................ 50        Section 6.1    Record-Keeping Documentation; Audit Rights. ................................ 50        Section 6.2    Reports; Invoicing Information; Other Information. ......................... 52  ARTICLE VII. DATA ACCESS ............................................................................................... 53        Section 7.1    Access to Data and Meters. ................................................................ 53  ARTICLE VIII. REPRESENTATIONS AND WARRANTIES OF SELLER ......................... 53        Section 8.1    Representations and Warranties of Seller. ......................................... 53  ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF BUYER ............................. 58        Section 9.1    Representations and Warranties of Buyer. ......................................... 58  ARTICLE X. CONFIDENTIALITY ......................................................................................... 59        Section 10.1   Confidential Information. .................................................................. 59        Section 10.2   Restricted Access. .............................................................................. 59        Section 10.3   Permitted Disclosures. ....................................................................... 61  ARTICLE XI. LICENSE AND OWNERSHIP; SOFTWARE .................................................. 63        Section 11.1   IP License to Use. .............................................................................. 63        Section 11.2   Grant of Third Party Software License. ............................................. 63        Section 11.3   Effect on Licenses. ............................................................................. 64        Section 11.4   No Software Warranty. ...................................................................... 64        Section 11.5   IP Related Covenants. ........................................................................ 64        Section 11.6   Representations and Warranties. ........................................................ 65  ARTICLE XII. EVENTS OF DEFAULT AND TERMINATION ........................................... 65        Section 12.1   Seller Default. .................................................................................... 65        Section 12.2   Buyer Default. .................................................................................... 66        Section 12.3   Buyer’s Remedies Upon Occurrence of a Seller Default. ................. 67        Section 12.4   Seller’s Remedies Upon Occurrence of a Buyer Default. ................. 67        Section 12.5   Preservation of Rights. ....................................................................... 68        Section 12.6   Force Majeure. ................................................................................... 68        Section 12.7   Termination of Facilities Subject to PPAs. ........................................ 68    -ii-     





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page    ARTICLE XIII. INDEMNIFICATION ..................................................................................... 69        Section 13.1   IP Indemnity....................................................................................... 69        Section 13.2   Indemnification of Seller by Buyer.................................................... 71        Section 13.3   Indemnification of Buyer by Seller. ................................................... 71        Section 13.4   Indemnity Claims Procedure. ............................................................. 72        Section 13.5   Limitation of Liability. ....................................................................... 73        Section 13.6   Liquidated Damages; Estoppel. ......................................................... 74        Section 13.7   Survival. ............................................................................................. 74  ARTICLE XIV. MISCELLANEOUS PROVISIONS ............................................................... 74        Section 14.1   Amendment and Modification. .......................................................... 74        Section 14.2   Waiver of Compliance; Consents. ..................................................... 74        Section 14.3   Notices. .............................................................................................. 75        Section 14.4   Assignment; Subcontractors. ............................................................. 76        Section 14.5   Dispute Resolution; Service of Process. ............................................ 77        Section 14.6   Governing Law, Jurisdiction, Venue. ................................................ 77        Section 14.7   Counterparts. ...................................................................................... 78        Section 14.8   Interpretation. ..................................................................................... 78        Section 14.9   Entire Agreement. .............................................................................. 78        Section 14.10  Construction of Agreement. ............................................................... 78        Section 14.11  Severability. ....................................................................................... 78        Section 14.12  Further Assurances............................................................................. 78        Section 14.13  Independent Contractors. ................................................................... 79        Section 14.14  Limitation on Export. ......................................................................... 79        Section 14.15  Time of Essence. ................................................................................ 79        Section 14.16  No Rights in Third Parties. ................................................................ 79        Section 14.17  Amendment and Restatement of Second A&R PUMA. .................... 79                                            -iii-     





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page    ANNEXES   Annex A     Minimum Power Product Example Calculation  Annex B    Insurance   Annex C    Capacity Warranty Claim Example Calculation and Amounts Payable  Annex D    List of PPAs    EXHIBITS   Exhibit A  Specifications for Bloom Systems and Battery Solution  Exhibit B  Form of Bill of Sale  Exhibit C   Seller Deliverables  Exhibit D   Form of Payment Notice  Exhibit E  Form of Purchase Order  Exhibit F  Form of Seller’s Deposit Milestone Certificate  Exhibit G   Form of Tranche Notice  Exhibit H   Form of Seller’s Certificate of Installation  Exhibit I   Assignment Agreements  Exhibit J   Seller Corporate Safety Plan  Exhibit K   Seller Subcontractor Quality Plan  Exhibit L  Projected Tolling Rates  Exhibit M  Parties’ Managers and Service Fees     SCHEDULES    Schedule 3.3      Design and Installations Procedures  Schedule 3.4      Commissioning Procedures  Schedule 4.2      Operations and Maintenance Procedures  Schedule 4.6      Approved Major Service Providers      -iv-     





 






                            THIRD AMENDED AND RESTATED                 PURCHASE, USE AND MAINTENANCE AGREEMENT          This THIRD AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE   AGREEMENT (this “Agreement”), dated as of October 24, 2016, amended and restated as of June   26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a   third  time  as  of  September  26,  2018  (the  “Agreement  Date”),  is entered  into  by  and  between   BLOOM  ENERGY  CORPORATION,  a  Delaware  corporation  (“Seller”),  and  2016  ESA   PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”).  Seller and Buyer   are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.                                     RECITALS          WHEREAS, Seller is in the business of designing, constructing and installing on-site solid   oxide fuel cell power generating systems;          WHEREAS,  Buyer  is  a  company  formed  at  the  direction  of  Seller  for  the  purpose  of   purchasing and owning Bloom Systems for the generation of electricity and sale of electricity   generated by the Bloom Systems;          WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems to be   installed in certain Facilities in connection with PPAs entered  into  by Buyer  when  and  as  the   conditions to such installation are met as provided in this Agreement;           WHEREAS, to induce Buyer to purchase the Bloom Systems, Seller also has agreed to   provide certain operations and maintenance services to or on behalf of Buyer subject to the terms   and conditions of this Agreement;           WHEREAS,  Buyer  and  Seller  previously  entered  into  that  certain Purchase,  Use  and   Maintenance Agreement, dated as of October 24, 2016, as amended by (a) that certain Amendment   No. 1 to Purchase, Use and Maintenance Agreement, dated as of February 15, 2017, and (b) that   certain Amendment No. 2 to Purchase, Use and Maintenance Agreement, dated as of April 28,   2017 (collectively, the “Original PUMA”);          WHEREAS, Buyer and Seller amended and restated the Original PUMA in its entirety  pursuant to that certain First Amended and Restated Purchase, Use and Maintenance Agreement,  dated as of June 26, 2017, as amended by that certain Amendment No. 1 to First Amended and  Restated  Purchase,  Use  and  Maintenance  Agreement,  dated  as  of  September  11,  2017  (collectively, the “First A&R PUMA”);           WHEREAS, Buyer and Seller amended and restated the First A&R PUMA in its entirety   pursuant  to  that  certain  Second  Amended  and  Restated  Purchase, Use  and  Maintenance   Agreement, dated as of March 16, 2018, as amended by (a) that certain Amendment No. 1 to   Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of April 26,   2018, (b) that certain Amendment No. 2 to Second Amended and Restated Purchase, Use and   Maintenance Agreement, dated as of June 22, 2018, and (c) that certain Amendment No. 3 to   Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 30,   2018 (collectively, the “Second A&R PUMA”); and      





 






         WHEREAS, Buyer and Seller now wish to amend and restate the Second A&R PUMA in  its entirety with this Agreement as of the Agreement Date, as further set forth in Section 14.17.         NOW,  THEREFORE,  in  consideration of  the  mutual  covenants,  representations,  warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the  Parties agree as follows:                                   AGREEMENT                                    ARTICLE I.                                  DEFINITIONS         Section 1.1 Definitions.  As used in this Agreement, capitalized terms not otherwise  defined shall have the meanings set forth below:         “Actual kWh” means the actual energy output in kWh produced by a Facility and measured        by the Facility Meter, and, subject to adjustment for meter defects pursuant to a PPA, where        appropriate in the context of this Agreement, aggregated together with the actual energy        output of other Facilities.         “Actual Revenues” is defined in Section 4.12(j)(i).         “Adjusted Facility Recorded Adjustments” is defined in Section 4.12(f).          “Affiliate” of any Person means a Person that directly, or indirectly through one or more        intermediaries, controls, or is controlled by, or is under common control with, the Person        specified, provided that notwithstanding anything in this Agreement to the contrary, Seller        is  not  an  Affiliate  of  Buyer.   For  purposes  of  this  Agreement, the  direct  or  indirect        ownership of over fifty percent (50%) of the outstanding voting securities of an entity, or        the right to receive over fifty percent (50%) of the profits or earnings of an entity shall be        deemed to constitute control.  Such other relationships as in fact results in actual control        over the management, business and affairs of an entity, shall also be deemed to constitute        control.           “Agreement” is defined in the preamble.         “Agreement Date” is defined in the preamble.         “Amendment No. 2 to 2nd A&R PUMA” means that certain Amendment No. 2 to Second        Amended and Restated Purchase, Use and Maintenance Agreement, by and between Buyer        and Seller dated as of June 22, 2018.         “AOM” means an auxiliary output module, to be included in certain of the Facilities.          “Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure        described in this definition Buyer and Seller shall engage a Qualified Appraiser, mutually        acceptable to them, to conclusively determine within fifteen (15) days after appointment        the Fair Market Value of a Facility.     2  





 






                     “Approved  LDC”  means,  with  respect  to  each  Site,  the  local  natural  gas  distribution       company serving the PPA Customer at such Site. For the avoidance of doubt, natural gas       supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding       the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer       hereunder.         “Assignment  Agreements”  means  the  assignment  and  assumption  agreements  listed  on       Exhibit I hereto, as the same may be updated from time to time by the mutual agreement       of the Parties.        “AT&T PPA” has the meaning set forth in Annex D.        “Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to       any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law       (except if such petition is contested by such Person and has been dismissed within sixty       (60) days); insolvency of such Person as finally determined by a court proceeding; filing       by such Person of a petition or application to accomplish the same or for the appointment       of a receiver or a trustee for such Person or a substantial part of its Assets; commencement      of any proceedings relating to such Person under any other reorganization, arrangement,      insolvency,  adjustment  of  debt  or  liquidation  law  of  any  jurisdiction,  whether  now  in      existence or hereinafter in effect, either by such Person or by another, provided, that, if      such  proceeding  is  commenced  by  another,  such  Person  indicates its  approval  of  such      proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such      Person and has not been finally dismissed within sixty (60) days.         “Bankruptcy Laws” is defined in Section 11.3.         “Base Case Model” means the economic model titled “PPA VI Financial Model Q3 18       Purchase  Price  Adjustment  9-19-18  FINAL  (TO  SEND).xlsx”  exchanged  between  the       Parties on or about September 19, 2018.        “Battery Solution” means an integrated battery solution, manufactured and supplied by the       Battery Solution Manufacturer as described in the specifications set forth on Exhibit A, to       be included in certain of the Facilities.       “Battery  Solution  Manufacturer”  means  PowerSecure,  Inc.,  or  such  replacement       manufacturer as the Parties may mutually agree in writing.        “Battery  Solution  Supply  Agreement”  means  that  certain  Supply  Agreement  between       PowerSecure, Inc. and Seller, dated as of April 28, 2017.         “Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.        “Bloom Component Defect” means any defect in parts and components supplied by Seller       or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture       any Battery Solution that (i) was not caused by the Battery Solution Manufacturer’s misuse,       including but not limited to, improper testing, assembly, and mishandling of such parts and       components  and  (ii)  results  in  a  failure  of  such  parts  and  components  to  perform  in   3  





 






                     accordance  with  any  warranty(ies)  provided  by  Seller  to  the  Battery  Solution       Manufacturer.        “Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable       of being powered by natural gas designed, constructed and installed by Seller, which will       be installed in the Facilities, and “Bloom System” means each such system.        “BOF”  means,  for  each  Site,  the  balance  of  facility  items  included  in  each  Facility       including,  as  applicable,  Electrical  Interconnection  Facilities,  the  natural  gas  supply      facilities, the water supply facilities, the data communications facilities, the foundations      for  the  Bloom  Systems  and  any  other  facilities  and  equipment  ancillary  to  the  Bloom      Systems  and  installed  in  connection  with  the  Facility  at  each  Site  and  all  other  things      ancillary to the Facility and required on or in the vicinity of the Site which are necessary       to achieve Commencement of Operations at each such Site or which are otherwise required       by the applicable PPA or Site License for such Site.        “BOF Work” is defined in Section 3.3(a).        “Business Day” means a day other than a Saturday, Sunday or other day on which banks       in New York, New York, or San Francisco, California, are authorized or required to close.        “Buyer” is defined in the preamble.        “Buyer Default” is defined in Section 12.2.         “Buyer Indemnitee” is defined in Section 13.3(a).         “Buyer Manager” is defined in Section 4.8(b).        “Calculation Date” is defined in Section 4.12(a).        “Calculation Period” is defined in Section 4.12(a).         “Calendar Quarter” means each period of three months ending on March 31, June 30,       September 30 and December 31.        “Capacity Warranty” means the Performance Warranty or the Performance Guaranty, as       applicable.        “Claiming Party” is defined in Section 12.6.        “Code” means the Internal Revenue Code of 1986, as amended.        “Commencement of Operations” means, with respect to any Facility, the completion and       the performance of all of the following activities:             (a)    all Bloom Systems and related materials comprising such Facility required            to complete all BOF Work have been Delivered;   4  





 






                (b)   such Facility has been installed at the location specified in the applicable                  Site License and Placed in Service;                   (c)  (i) such Facility (A) has been attached to the load at the applicable Site, (B)                  is producing power at [***] of the aggregate System Capacity of all Bloom Systems                  included in such Facility, and (C) is operating at or above the Minimum Efficiency                  Level, and (ii) Seller has provided Buyer with evidence reasonably satisfactory to                  Buyer of each of the foregoing;                   (d)   Seller has (i) performed and successfully completed all necessary acts under                  the applicable Interconnection Agreement (including performance testing), and (ii)                  obtained  permission  from  the  applicable  Person  granting  Buyer  permission  to                  interconnect  such  Facility  with  the  distribution  or  transmission  facilities  of  the                  Transmitting Utility;                    (e)   Seller shall have delivered Seller’s Certificate of Installation to Buyer; and                  (f)    Seller  shall  have  delivered  to  Buyer  each  of  the  Seller  Deliverables                 indicated  on  Exhibit  C  as  items  for  delivery  prior  to  or  at  Commencement  of                  Operations.              “Commencement of Operations Date Deadline” means December 31, 2019.               “Components” means any tangible materials and spare or replacement parts reasonably                  required for the construction, installation, commissioning, operation, maintenance                  and repair of a Facility.             “Confidential Information” is defined in Section 10.1.             “CoreSite PPA” has the meaning set forth in Annex D.             “DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the            International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS®            2010”) as prepared by the International Chamber of Commerce.             “Delivery” means for each Bloom System, the physical delivery of such Bloom System to            its Site.  Following such Delivery, the Bloom System shall have been “Delivered.”             “Delivery Date” means for each Bloom System, the date of Delivery.             “Deposit Milestone Requirements” means, for a Tranche, that:                    (a)   Buyer has received approval of Site plans and single-line drawings from                  one or more PPA Customers for Facilities with aggregate System Capacity equal                  to  or  greater  than  the  aggregate  System  Capacity  of  Facilities included  in  such                  Tranche (and all other Tranches for which Seller previously delivered a Seller’s                  Deposit Milestone Certificate to Buyer);                                             5  [***] Confidential Treatment Requested 





 






      (b)   Seller  has  received  all  materials  required  for  the  commencement  of        fabrication of Bloom Systems with aggregate System Capacity equal to or greater        than the aggregate System Capacity of Facilities included in such Tranche, and all        materials required as of such time to allow for completion of such fabrication in        order to achieve Commencement of Operations of such Facilities (and all Facilities        included  in  all  other  Tranches  for  which  Seller  previously  delivered  a  Seller’s        Deposit Milestone Certificate to Buyer) within ninety (90) days; and         (c)  Seller shall have delivered Seller’s Deposit Milestone Certificate to Buyer,        certifying the satisfaction of requirements (a) and (b) hereof.   “Documentation” means Bloom System documentation for a Facility, including testing,  engineering, specifications, and operations and maintenance manuals, Training Materials,  drawings, reports, standards, schematics, directions, samples and patterns, including any  such Documentation required to be delivered prior to Commencement of Operations under  Section 3.4(a)(iv).   “Efficiency”  means  the  quotient  of  E/F,  where  (i)  E  =  the  electricity  produced  by  the  applicable Facility, measured in BTUs (British Thermal Units) at an assumed conversion  rate of 3,412 BTUs per kWh, and (ii) F = the fuel consumed by such Facility, measured in  BTUs on a lower heating value basis as determined by the mass flow controller included  in the applicable Facility.   “Efficiency Warranty” is defined in Section 5.3.   “Efficiency Warranty Period” means each calendar month following the Commencement  of Operations of a Facility (or, in the case of the calendar month in which Commencement  of Operations occurred, the portion of such calendar month commencing on the date such  Facility achieved Commencement of Operations), but shall exclude any period when such  Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because  of a failure to perform by the applicable PPA Customer, except to the extent caused or  contributed  to  by  Seller  or  its  employees,  agents,  subcontractors  or  representatives,  (iii) was required by a Legal Requirement (which for this purpose shall include any utility  requirement)  to  be  disconnected  from  the  distribution  or  transmission  facilities  of  the  Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal  Requirement  or  action  by  or  a  directive  from  the  applicable  Transmitting  Utility  with  respect to such Facility (e.g., due to a grid event), or (iv) was impacted by a failure of the  Battery Solution to perform in accordance with any warranty(ies) provided by the Battery  Solution  Manufacturer  (excluding  any  such  failure  of  the  Battery  Solution  that  is  attributable to a Bloom Component Defect), except, in each case, to the extent caused or  contributed to by Seller or its employees, agents, subcontractors and representatives.   “Electrical Interconnection Facilities” means the equipment and facilities required to safely  and reliably interconnect a Facility to the transmission system of the Transmitting Utility,  including  the  collection  system  between  each  Bloom  System,  transformers  and  all  switching,  metering,  communications,  control  and  safety  equipment,  including  the  facilities described in any applicable Interconnection Agreement.                                   6 





 






 “Electronic Data Room” means the electronic dataroom known as “Project Bloom PPA”   established by the Seller and made available to the Investor.    “Energy” means three-phase, 60-cycle alternating current electric energy constituting the   Actual kWh.    “Environmental Law” means any Legal Requirement which pertains to health, safety, any   Hazardous Material, or the environment (including but not limited to ground or air or water   or noise pollution or contamination, and underground or above ground tanks) and shall   include without limitation, the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; the   Comprehensive  Environmental  Response,  Compensation  and  Liability  Act  of  1980,  42   U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act   of 1986; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal   Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401   et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking   Water Act, 42 U.S.C. § 300f et seq.; and any other state or federal environmental statutes,   and all rules, regulations, orders and decrees now or hereafter promulgated under any of  the foregoing, as any of the foregoing now exist or may be changed or amended or come  into effect in the future.   “Environmental Requirements” means any Environmental Law, agreement or restriction   (including but not limited to any condition or requirement imposed by any insurance or   surety company), as the same now exists or may be changed or amended or come into   effect  in  the  future,  which  pertains  to  health,  safety,  any  Hazardous  Material,  or  the   environment.    “EPC Services” is defined in Section 2.1.    “Equinix” means the PPA Customer pursuant to the Equinix PPA.     “Equinix Indemnity Agreement” means that certain letter agreement between Buyer and   Equinix regarding the Equinix Landlord Consents, dated as of June 27, 2018.     “Equinix Landlord Consent(s)” means each of (i) that certain Letter Agreement between   Equinix and Digital 1350 Duane, LLC regarding consent to alterations to allow installation   of the Facility to be installed at 1350 Duane Avenue, Santa Clara, CA, dated as of July 25,   2018; and (ii) that certain Letter Agreement between Equinix and Digital 444 Toyama,   LLC regarding consent to alterations to allow installation of the Facility to be installed at   444 Toyama Drive, Sunnyvale, CA, dated as of July 25, 2018.     “Equinix  PPA”  has  the  meaning  set  forth  in  Annex  D,  which,  for clarity,  includes  the   Equinix Indemnity Agreement and the Equinix Landlord Consents.    “Extended Warranty Period” means, with respect to each Facility, the period commencing   on  the  first  (1st)  anniversary  of  the  date  such  Facility  achieves  Commencement  of   Operations and ending on the twentieth (20th) anniversary of the date of Commencement   of  Operations  of  such  Facility  unless  (a)(i)  the  applicable  PPA  has  been  renewed  or   extended beyond such twentieth (20th) anniversary and (ii) Buyer and Seller have agreed                                    7 





 






 on an appropriate amendment to this Agreement to provide for an extension of the term of   the Extended Warranty Period for the applicable Facility(ies), in which case the Extended   Warranty Period shall end on the date on which such PPA expires or terminates.    “Extension Agreement” is defined in Section 4.1(c).    “Facility” means, collectively, the Bloom Systems and the BOF at a particular Site.  For   the  avoidance  of  doubt,  “Facility”  includes,  where  applicable, any  AOM(s),  Battery   Solution, Low Pressure Gas Booster(s) and/or UPM(s) installed in connection with the   Bloom Systems at a particular Site.  Where a PPA provides for multiple “Phases” at a Site   (i.e., discrete installations of Bloom Systems to be installed behind a single Transmitting   Utility meter), each Phase shall be understood to be a separate “Facility” for purposes of   this Agreement.    “Facility Meter” means (a) with respect to a Site that has a single Phase, the revenue quality   electricity generation meter to be located as at the metering point (the proposed location of   which is to be identified in the applicable Interconnection Agreement) and approved by the   Transmitting Utility, which shall register all Energy produced by a Facility and delivered   to the Interconnection Point, and (b) with respect to a Site that has multiple Phases, the   revenue  quality  electricity  generation  meter  that  is  dedicated to  measuring  the  energy   output of the applicable Phase to be located as at the metering point (the proposed location   of which is to be identified in the applicable Interconnection Agreement) and approved by   the Transmitting Utility, which shall register all Energy produced by the applicable Phase   and delivered to the Interconnection Point.    “Facility Recorded Adjustments” is defined in Section 4.12(f).    “Facility Services” is defined in Section 4.1.    “Facility Purchase Conditions” means for a relevant Facility that the Facility has not been   Placed in Service (including specifically because the events described in clauses (2), (3)   and (4) of the definition of Placed in Service have not occurred), but that (a) the events   described in clause (1) of the definition of Placed in Service have occurred, and (b) all of   Seller’s obligations under Section 3.3(a)(ii) have been performed.    “Facility Services Warranty” is defined in Section 5.1.    “Fair Market Value” means, with respect to any Facility, the price at which such asset   would change hands between a willing buyer and a willing seller, neither being under any  compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts,  and  specifically  with  respect  to  the  Facility  or  any  portion  thereof,  as  determined  consistently with Section 4.05 of Revenue Procedure 2007-65.     “FedEx PPA” has the meaning set forth in Annex D.    “FERC” means the Federal Energy Regulatory Commission and any successor.                                     8 





 






 “Final Determination” means the earliest to occur of (a) the date on which a decision,   judgment, decree or other order has been issued by any court of competent jurisdiction,   which  decision,  judgment,  decree,  or  other  order  has  become  final  (i.e.,  all  allowable   appeals requested by the parties to the action have been exhausted or the time for instituting   an appeal has expired or lapsed), (b) the date on which the Internal Revenue Service has   reached a final administrative determination which, whether by law or agreement, is not   subject to appeal, or (c) the date on which the time for instituting a claim, appeal, contest,   or challenge to any notice or action by the Internal Revenue Service has expired or lapsed.    Notwithstanding anything to the contrary herein, no party shall be required to pursue any   appeal or action if the party has determined in good faith that such an appeal or action   would not have a reasonable possibility of success, in which case any decision, decree,   order, or administrative determination that is the subject of such opinion shall be deemed   to be a Final Determination.    “First A&R PUMA” is defined in the recitals.    “Force Majeure Event” means any event or circumstance that (a) prevents a Party from   performing its obligations under this Agreement; (b) was not reasonably foreseeable by  such Party; (c) was not within the reasonable control of, or the result of the negligence of  such Party or a breach of this Agreement by such Party; and (d) such Party is unable to  reasonably  mitigate,  avoid  or  cause  to  be  avoided  with  the  exercise  of  due  diligence.   “Force Majeure Event” may include, provided that the conditions in (a) through (d) in the   foregoing  sentence  are met,  inability  of  Buyer  to  obtain  or  maintain  market-based rate   authority from FERC to operate any Facility (except to the extent such inability results   from  a  Buyer-initiated  change  in  Buyer’s  business  from  that  contemplated  as  of  the   Original PUMA Agreement Date and/or the assets or operations of any entity considered   by FERC to be affiliated with Buyer), a failure or interruption of performance due to an act   of  God,  civil  or  military  authority,  war,  civil  disturbances,  terrorist  activities,  fire,   explosions, the external power delivery system (a/k/a the grid) being out of the required   specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment.    Notwithstanding the foregoing, Force Majeure Event does not include the lack of economic   resources of a Party, Seller’s failure to design and construct the Facilities so as to meet the   respective warranties hereunder, or the supply of natural gas from any source other than an   Approved LDC or any act or omission by Seller, Seller Affiliate, the Service Provider or a   Seller or Seller Affiliate agent, representative or subcontractor at any tier that results in a   termination of the Equinix PPA based on a breach of Section 7.1(h)(i) of the Equinix PPA.    If an event or circumstance gives rise to a Force Majeure Event as defined herein under   this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure   Event’ as defined under the applicable PPA or Site License (depending on which Facilities   are affected), then for the purposes of any rights and obligations of the parties under this   Agreement  that  relate  to  corresponding  rights  or obligations  under  such  PPA  or  Site   License such event or circumstance will not constitute a Force Majeure Event under this   Agreement.      “Fundamental  Representation”  means  the  representations  provided  in  Section  8.1(b),   Section 8.1(h), Section 8.1(k) and Section 8.1(o).                                    9 





 






“GAAP”  means  United  States  generally  accepted  accounting  principles  consistently  applied.   “Governmental Approvals” means (a) any authorizations, consents, approvals, licenses,  rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or  with a relevant Governmental Authority and (b) any required notice to, any declaration of,  or with, or any registration or filing by, or with, any relevant Governmental Authority.   “Governmental Authority” means any foreign, federal, state, local or other governmental,  regulatory  or  administrative  agency,  court,  commission,  department,  board,  or  other  governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body  or other governmental authority.   “Guaranty Bank Determination Date” is defined in Section 4.12(f).    “Hazardous  Material”  means  and  includes  those  elements  or  compounds  which  are  contained or regulated as a hazardous substance, toxic pollutant, pesticide, air pollutant, or  as defined in any Environmental Law, order or decree of any Governmental Authority for  the protection of human health, water, safety or the environment or is otherwise included  in the definition of “Hazardous Materials,” “Hazardous Substance” or a similar term in a  PPA or a Site License.   “Home Depot PPA” has the meaning set forth in Annex D.   “Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage (including any  losses arising as a result of the loss or recapture of any ITC), obligation, payment, fine,  cost  or  expense  (including  the cost  and  expense  of  any  investigation,  action,  suit,  proceeding,  assessment,  judgment,  settlement  or  compromise  relating  thereto  and  reasonable attorneys’ fees and reasonable disbursements in connection therewith).   “Indemnified Party” is defined in Section 13.4.    “Indemnifying Party” is defined in Section 13.4.   “Indexed PPA” is defined in Section 4.11.   “Indexed PPA Tolling Rate Guaranty” is defined in Section 4.12(a).   “Intellectual Property” shall mean any or all of the following and all rights therein, whether  arising under the laws of the United States or any other jurisdiction (a) all patents and patent  applications  (and  all  reissues, divisions,  re-examinations,  renewals,  extensions,  provisionals,  continuations  and  continuations-in-part  thereof),  patent  disclosures  and  inventions (whether patentable or not); (b) all trade secrets, know-how and confidential  and  proprietary  information;  (c)  all  copyrights  and  copyrightable  works  (including  computer  programs)  and  registrations  and  applications  therefor and  any  renewals,  modifications and extensions thereof; (d) all moral and economic rights of authors and  inventors,  however  denominated,  throughout  the  world;  (e)  unregistered  and  registered  design rights and any registrations and applications for registration thereof; (f) trademarks,                                   10  





 






 service  marks,  trade  names,  service  names,  brand  names,  trade  dress,  logos,  slogans,   corporate names, trade styles, domain  names  and  other  source  or  business  identifiers,   whether registered or not, together with all applications therefor and all extensions and   renewals thereof and all goodwill associated therewith; (g) semiconductor chip “mask”   works, and registrations and applications for registration thereof, (h) database rights; (i) all   other forms of intellectual property, including waivable or assignable rights of publicity or   moral rights; and (j) any similar, corresponding or equivalent rights to any of the foregoing   anywhere in the world.    “Interconnection Agreement” means an agreement between the PPA Customer (or Buyer   (as  required))  and  the  applicable  Transmitting  Utility  regarding  interconnection  of  a   Facility to the transmission or distribution system of such Transmitting Utility.      “Interconnection Point” means, with respect to each Facility, the point at which title and   risk of loss with respect to the electricity produced by such Facility passes to the applicable   PPA Customer.      “Investor” means Southern PowerSecure Holdings, Inc.    “Invoice Due Date” means the date specified on a Payment Notice duly delivered by Seller   to  Buyer  for  the  Milestones  achieved  by  certain  Tranches  and/or  Facilities  in  a  given   calendar month.    “IP License” is defined in Section 11.1.    “IRS” means the Internal Revenue Service.    “ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).    “Knowledge” means (a) as to any Person other than a natural person, the actual knowledge   (including any knowledge which would reasonably have been obtained after due inquiry)  of such Person and its managers, directors officers and employees who have responsibility  for the transactions contemplated by this Agreement, and (b) in respect of any Person who  is  a  natural  Person,  the  actual  knowledge  (including  any  knowledge  which  would  reasonably have been obtained after due inquiry) of such Person.    “kW” means kilowatt.    “kWh” means kilowatt-hour.    “Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the   extent having the force of law), tariff, order, treaty, code or regulation or any interpretation   of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority,   NERC, any Person that NERC has delegated its authority to under the Federal Power Act   or  any  Person  that  operates  an  interstate  electric  transmission  system,  including  all   amendments,  modifications,  extensions,  replacements  or  re-enactments thereof,  in  each   case applicable to or binding upon such Person or any of its properties or to which such   Person or any of its property is subject.                                    11  





 






 “Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other   restriction on title or property interest.   “Low-Pressure  Gas  Booster”  means  a  component  designed  to  increase the pressure of   natural gas supplied to a Facility by the applicable local natural gas distribution company   serving an applicable PPA Customer at the applicable Site to the level required for the   ordinary operation of such Facility.     “LREC Contract(s)” means each of the South Windsor LREC Contract and the Middletown   LREC Contract.    “Maintenance Specification Log” is defined in Section 6.1(a).    “Major Service Provider” is defined in Section 4.6.     “Managers” means Operations Manager and Buyer Manager.    “Manufacturer’s Warranty Period” means, for each Facility, the period beginning on the   date the applicable Facility achieves the requirements of subsections (a), (c) and (d) of the   definition of “Commencement of Operations” and ending on the first (1st) anniversary of   the date of Commencement of Operations of such Facility.    “Material Adverse Effect” means, for any Person or Facility, as applicable, any change,   effect  or  occurrence  that,  individually  or  in  the  aggregate,  is  or  could  reasonably  be   expected to be materially adverse to (a) the business, earnings, assets, results of operations,   property or condition (financial or otherwise) of such Person or Facility, as applicable, (b)   the  validity  or  enforceability  of  any  Transaction  Document,  any  applicable  PPA,  any   applicable Site License or the transactions contemplated by this Agreement, or (c) any   Person’s  (including  any  PPA  Customer’s)  ability  to  perform  its obligations  under  any   Transaction Document, any applicable PPA, any applicable Site License (including any   material adverse effect on any customer that has, or could reasonably be expected to have,   a material adverse impact on such customer’s ability to fully perform under any applicable   PPA).    “Maximum Liability” means, with respect to each Party, One Million Dollars ($1,000,000).    “Middletown LREC Contract” means that certain Standard Contract for the Purchase and   Sale of Connecticut Class I Renewable Credits from Low or Zero Emission Projects, dated   as  of  July  26,  2017,  by  and  between  FedEx  Ground  Package  System,  Inc.  and  the   Connecticut Light and Power Company dba Eversource Energy, as assigned to 2017 ESA   Project Company, LLC pursuant to that certain Assignment and Assumption Agreement   dated as of October 24, 2017 by and between FedEx Ground Package System, Inc. and   2017 ESA Project Company, and assigned from 2017 ESA Project Company to Buyer   pursuant to that certain Assignment and Assumption Agreement executed by 2017 ESA   Project Company and Buyer as of the “Effective Date” of Amendment No. 2 to 2nd A&R  PUMA.                                     12  





 






       “Milestone(s)” means each of (a) the Deposit Milestone Requirements, (b) Shipment, and         (c) Commencement of Operations.          “Minimum Efficiency Level” means an Efficiency quotient of 45%.          “Minimum kWh” means the product of (a) the number of hours in the applicable period         minus the number of hours for each Facility, as of the last day of the applicable period         following Commencement of Operations with respect to the applicable Facility when the         operation  of  such  Facility  (i)  (A) was  subject  to  a  Force  Majeure  Event,  (B) was  not         delivering Energy, or was delivering Energy at a reduced level, because of a failure to         perform by the applicable PPA Customer, except to the extent caused or contributed to by         Seller or its employees, agents, subcontractors or representatives, (C) was required by a         Legal Requirement (which for this purpose shall include any utility requirement) to be         disconnected from the distribution or transmission facilities of the Transmitting Utility or         otherwise required not to deliver Energy as the result of a Legal Requirement or action by         or  a  directive  from  the  applicable  Transmitting  Utility  with  respect  to  the  applicable         Facility (e.g., due to a grid event), or (D) was impacted by a failure of the Battery Solution         to  perform  in  accordance  with  any  warranty(ies)  provided  by  the  Battery  Solution         Manufacturer (excluding any such failure of the Battery Solution that is attributable to a         Bloom Component Defect), except, in each case, to the extent caused or contributed to by         Seller  or  its  employees,  agents,  subcontractors  and  representatives,  or  (ii)  was  not         delivering Energy during any idle period specified in an Extension Agreement entered into         pursuant to Section 4.1(c) hereof, and (b) the Minimum Power Product for the applicable         period.          “Minimum  Power  Product”  means  (a)  when  this  term  is  used  for  the  Performance         Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for         the applicable Calendar Quarter multiplied by [***], and (b) when this term is used for the         Performance  Guaranty,  the  aggregate  System  Capacity  of  the  Bloom  Systems  in  the         Portfolio in kW for the applicable calendar year multiplied by [***].  An example of a         calculation of the Minimum Power Product is set forth in Annex A.          “Monthly Report” is defined in Section 6.1(a).          “MW” means megawatt.          “Nameplate Capacity” means the maximum electrical output of a generator as rated by the         manufacturer  determined  at  the  normal  operating  conditions  designated  by  the        manufacturer.         “NERC” means the North American Electric Reliability Corporation or any successor.           “NYC HHC PPA” is defined in Annex D.          “Operations Manager” is defined in Section 4.8(a).          “Original PUMA” is defined in the recitals.                                          13   [***] Confidential Treatment Requested 





 






    “Original PUMA Agreement Date” means October 24, 2016.       “Party” and “Parties” have the meanings set forth in the preamble.       “Payment Certificate” means Seller’s Deposit Milestone Certificate or Seller’s Certificate      of Installation, as applicable.       “Payment Notice” means a notice delivered from Seller to Buyer pursuant to Section 2.4(c)      in the form attached hereto as Exhibit D.       “Performance Guaranty” is defined in Section 5.2.       “Performance Guaranty Payment Cap” means the product of (x) Seven Hundred Twenty-     Seven Dollars and Seventy-One Cents ($727.71) multiplied by (y) the System Capacity of      all Bloom Systems in kW Purchased under this Agreement prior to the applicable date.       “Performance Guaranty Payment Rate” means $[***] per kWh.       “Performance Standards” is defined in Section 3.9.       “Performance Warranty” is defined in Section 5.4(a).       “Permits” means all Governmental Approvals that are necessary under applicable Legal      Requirements or this Agreement to have been obtained at such time in light of the stage of      development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or      use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or      for a Party to enter into this Agreement or to consummate any transaction contemplated      hereby, in each case in accordance with all applicable Legal Requirements.      “Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior      to  the  Delivery  Date  of  the  encumbered  assets;  (b)  obligations or  duties  to  any      Governmental  Authority  arising  in  the  ordinary  course  of  business  (including  under      licenses and Permits held by Buyer and under all Legal Requirements); (c) obligations or      duties under easements, leases or other property rights; and (d) any other Liens agreed to      in writing by Seller and Buyer.       “Person”  means  any  individual,  partnership,  limited  liability  company,  joint  venture,      corporation, trust, unincorporated organization, or governmental entity or any department      or agency thereof.       “Placed in Service” means, with respect to any Facility, the completion and performance      of all of the following activities: (1) obtaining the necessary licenses and Permits for the     operation of such Facility and the sale of power generated by the Facility in accordance     with clause (4) of this definition, (2) satisfactory completion of critical tests necessary for     the proper operation of such Facility in accordance with clause (4) of this definition, (3)     synchronization of such Facility onto the electric distribution and transmission system of     the  applicable  Transmitting  Utility,  and  (4)  the  commencement  of  regular,  continuous,     daily operation of such Facility.                                       14   [***] Confidential Treatment Requested 





 






 “Placed  in  Service  Date”  means,  with  respect  to  a  Facility,  the  date  upon  which  such   Facility is Placed in Service.    “Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are   purchased pursuant to this Agreement and that have been incorporated into Facilities which   have been Placed in Service and which have not thereafter been removed from the Portfolio   and/or repurchased by Seller pursuant to the terms of this Agreement.   “Portfolio Warranty” is defined in Section 5.5(a).    “PPA”  means  each  power  purchase,  energy  server  use,  energy  services  agreement,  or   similar agreement with a PPA Customer listed on Annex D hereto, as the same may be   updated from time to time by the mutual agreement of the Parties.    “PPA Customer” means each off-taker counter-party to a PPA.    “PPA Documentation” means all written invoices, receipts, billing statements, payment   notices, wire receipt and payment notifications, bank statements and other similar written   evidence  of  (i)  amounts  payable  by  Buyer  to  any  Person  and  (ii)  amounts  received  or   receivable by Buyer from any Person.     “PPA Warranties” is defined in Section 5.8(a).    “PPA Warranty Reimbursement Payment” is defined in Section 5.8(a).    “Project Model” means the economic model, incorporating a number of factors including   the availability and amount of tax credits and other incentives, to be delivered from Seller   to Buyer from time to time pursuant to Section 2.8.    “Projected Revenues” is defined in Section 4.12(j)(ii).    “Projected Tolling Rate(s)” is defined in Section 4.12(a).    “Prudent Electrical Practices” means those practices, methods, equipment, specifications   and standards of safety and performance, as the same may change from time to time, as are   commonly  used  by  a  significant  portion  of  the  grid-tied  fuel  cell  electrical  generation   industry operating in the United States and/or approved or recommended by the NERC as   good, safe and prudent engineering practices in connection with the design, construction,   operation,  maintenance,  repair  and  use  of  electrical  and  other equipment,  facilities  and   improvements  of  electrical  generating  facilities,  including  any  applicable  practices,  methods,  acts,  guidelines,  standards  and  criteria  of  FERC  and  all  applicable  Legal  Requirements.   “Purchase” is defined in Section 2.5.    “Purchase Date” is defined in Section 2.5.                                     15  





 






  “Purchase Order” means Buyer’s purchase order for a Facility or Facilities to be purchased    by Buyer in substantially the form of Exhibit E.     “Purchase Price” means a price for the design, installation and purchase of each Facility or    Tranche, based on the aggregate System Capacity of the Bloom Systems comprising such    Facility or Tranche, determined pursuant to Section 2.8, plus any Taxes for the account of    Buyer under Section 2.3(c) in respect of such Facility; provided, however, that Taxes shall    not be included in the calculation of the Purchase Price for invoices issued pursuant to    Section 2.3(a)(i) or Section 2.3(a)(iii).     “Purchase Price Adder(s)” means an addition to the Purchase Price for certain Facilities    based on the additional equipment included in such Facilities, calculated as follows:          (a)   For Facilities including AOM(s), $[***] for each AOM;          (b)    For Facilities including a Battery Solution pursuant to any PPA, a price         determined according to the terms and conditions of the Battery Solution Supply         Agreement;            (c)    For  Facilities  including  a  Low-Pressure  Gas  Booster,  $[***]/kW  of  the         aggregate System Capacity of the Bloom Systems comprising such Facility; and          (d)    For Facilities including UPM(s), $[***] for each UPM.    “Qualified  Appraiser”  means  a nationally  recognized  third-party  appraiser  reasonably    acceptable  to  Buyer  and  Seller  which  shall  (a)  be  qualified  to appraise  power  systems    similar  to  the  Bloom  Systems,  and  experienced  in  such  businesses  in  the  general    geographic region of the relevant Facility, and (b) not be associated with either Buyer or    Seller or any Affiliate thereof.  If the Parties cannot agree on a third-party appraiser within    fifteen (15) days of a Party invoking the Appraisal Procedure, then Marshall & Stevens    Incorporated shall act as the Qualified Appraiser.     “Refund  Value”  means,  with  respect  to  any  Facility  (including  Underperforming    Facilities), the greater of (a) the Fair Market Value of such Facility (as determined under    the Appraisal Procedure if Buyer and Seller cannot agree as to that Fair Market Value    within ten (10) days)), and (b) 100% of the Purchase Price for such Facility until the first    anniversary of  Commencement  of  Operations of  the  applicable  Facility,  [***]  on  each    anniversary  of  such  date  thereafter  (for  example,  on  the  fifth anniversary  of    Commencement of Operations, the Refund Value will be [***] of the Purchase Price), in    each case as calculated as of the date that Seller becomes obligated to refund such amount    to Buyer.  For clarity, the Refund Value includes one hundred percent (100%) of the Taxes,    if any, which were paid by or on behalf of Buyer pursuant to Section 2.3(c) for such Facility    or one hundred percent (100%) of any Taxes, if any, which are required to be paid by or    on behalf of Seller in connection with the return of such Facility.     “Representatives” of a Party means such Party’s authorized representatives, including its    professional and financial advisors.                                     16   [***] Confidential Treatment Requested 





 






“SCADA” means the supervisory control and data acquisition systems.   “Second A&R PUMA” is defined in the recitals.   “Seller” is defined in the preamble.   “Seller Default” is defined in Section 12.1.   “Seller Deliverables” means, with respect to each Facility, the items listed in Exhibit C.   “Seller Indemnitee” is defined in Section 13.2.   “Seller’s  Certificate  of  Installation”  means  a  certificate,  in  the  form  attached  hereto  as  Exhibit  H,  issued  by  Seller  to  Buyer  pursuant  to  paragraph  (e) of  the  definition  of  Commencement of Operations.   “Seller’s Deposit Milestone Certificate” means a certificate, in the form attached hereto as  Exhibit F, issued by Seller to Buyer pursuant to paragraph (c) of the definition of Deposit  Milestone Requirements.   “Seller’s Intellectual Property” is defined in Section 11.1.   “Service Fees” is defined in Section 4.3(a).   “Service Provider” means an operation and maintenance contractor appointed by Seller  and approved by Buyer pursuant to Section 4.6.   “Service Technicians” is defined in Section 4.2(d).   “Sharing Payment(s)” is defined in Section 4.12(j)(iii).   “Shipment” means for each Bloom System, shipment of such Bloom System from Seller’s  manufacturing facility to the Site.   “Shipment Date” means for each Bloom System, the date of Shipment.   “Site”  means  the  parcel  of  land  licensed  from  a  PPA  Customer  to  Buyer  under  a  Site  License and all easements appurtenant, easements in gross, license agreements and other  rights running in favor of Buyer which provide access to the applicable Facility.   “Site License” means each agreement between Buyer and a PPA Customer regarding the  license or similar contractual arrangement providing Buyer with the right of access to a  Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA.    “Site  Preparation  Services”  means  preparing  each  Site  for  installation  of  a  Facility,  obtaining  the  required  Permits  to  construct,  operate  and  maintain  the  Facility,  and  providing for natural gas interconnection facilities, the Electrical Interconnection Facilities  and  any  other  ancillary  facilities  and  equipment  between  the  Bloom  Systems  and  the                                   17  





 






 applicable Transmitting Utility and otherwise performing the tasks required to prepare each   Site for the Facility at the Site to attain Commencement of Operations.    “Software” shall mean all computer software that is necessary for Buyer to own and operate   the  Facilities  in  compliance  with  the  terms  of  this  Agreement, the  PPAs,  and  the  Site   Licenses.    “Software License” is defined in Section 11.2(a).    “South Windsor LREC Contract” means that certain Standard Contract for the Purchase   and Sale of Connecticut Class I Renewable Credits from Low or Zero Emission Projects,   dated as of July 28, 2016, by and between the Buyer and the Connecticut Light and Power   Company dba Eversource Energy.    “Southern Company” means The Southern Company (NYSE: SO).    “Specifications” means the specifications for the Battery Solution and the Bloom Systems,   as applicable, as set forth in Exhibit A.     “System Capacity” means, with respect to a Bloom System, the “System Capacity” set   forth on the applicable specification sheet provided by the manufacturer of such Bloom   System.  The aggregate System Capacity of the Bloom Systems comprising each Facility   shall  be  reflected  in  the  Bill  of  Sale  delivered  by  Seller  to  Buyer  with  respect  to such   Facility.    “Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:          (a)   any  taxes,  customs,  duties,  charges,  fees,  levies,  penalties  or  other        assessments  imposed  by  any  federal,  state,  local  or  foreign  taxing  authority,        including,  but  not  limited  to,  income,  gross  receipts,  windfall  profit,  severance,        property, production, sales, use, license, excise, franchise, net worth, employment,        occupation, payroll, withholding, social security, alternative or add-on minimum,        ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty,        fee, levy or other like assessment or charge of any kind whatsoever, together with        any interest, penalty, addition to tax, or additional amount attributable thereto; and         (b)    any liability for the payment of amounts with respect to payment of a type        described in clause (a), including as a result of being a member of an affiliated,        consolidated, combined or unitary group, as a result of succeeding to such liability        as a result of merger, conversion or asset transfer or as a result of any obligation        under any tax sharing arrangement or tax indemnity agreement.   “Term” means the period which (a) shall commence on the Original PUMA Agreement   Date and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or   unless extended by mutual agreement of the Parties, terminate on the date that is the last   day of the Warranty Period for the last Facility subject to the Warranty Period.                                     18  





 






  “Third  Party  Claim”  means  any  claim,  action,  or  proceeding  made  or  brought  by  any    Person  who  is  not  (a)  a  Party  to  this  Agreement,  or  (b)  an  Affiliate  of  a  Party  to  this    Agreement.     “Third Party Warranty” is defined in Section 3.7.     “Tolling Rate” means with respect to any period the specified rate used for the supply of    electricity or for the conversion of natural gas into electricity in the calculation of the fees    owed to Buyer by a PPA Customer pursuant to a PPA. Tolling Rates are set forth on a    dollar-per-kWh ($/kWh) basis or a dollar-per-MMBtu ($/MMBtu) basis, as indicated in    the applicable PPA.     “Training Materials” is defined in Section 4.7.     “Tranche” means an amount of Facilities, measured on the basis of the aggregate System    Capacity of the Bloom Systems comprising such Facilities (in kW), for which Seller is    invoicing Buyer pursuant to Section 2.3(a)(i).     “Tranche Notice” is defined in Section 2.2.     “Transaction Documents” means this Agreement and the Payment Certificates.     “Transmitting Utility” means, with respect to a Facility, the local electric utility company    in whose territory the Facility is located.     “Underperforming  Facility”  means  any  Facility  that  fails  to  deliver,  in  any  Calendar    Quarter during which the Portfolio fails to satisfy the Performance Warranty, a number of    kWh greater than or equal to the product of (a) such Facility’s aggregate System Capacity    multiplied by [***], and (b) the number of hours in such quarter minus the number of hours    as of the last day of such quarter when such Facility (i) was subject to a Force Majeure    Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA    Customer, except to the extent caused or contributed to by Seller or its employees, agents,    subcontractors or representatives, (iii) was required by a Legal Requirement (which for this    purpose shall include any utility requirement) to be disconnected from the distribution or    transmission  facilities  of  the  Transmitting  Utility  or  otherwise  required  not  to  deliver    Energy as the result of a Legal Requirement or action by or a directive from the applicable    Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), or    (iv) was impacted by a failure of the Battery Solution to perform in accordance with any    warranty(ies) provided by the Battery Solution Manufacturer (excluding any such failure    of the Battery Solution that is attributable to a Bloom Component Defect), except to the    extent  caused  or  contributed  to  by  Seller  or  its  employees,  agents,  subcontractors  and    representatives.     “UPM” means an uninterruptible power module, to be included in certain of the Facilities.     “Warranty  Period”  means,  for  each  Facility,  the  Manufacturer’s Warranty  Period,  as    extended or renewed by Buyer pursuant to Section 4.1(b), in which case the Warranty    Period shall mean the specified end date of the Warranty Period as so extended or renewed,                                     19   [***] Confidential Treatment Requested 





 






unless  the  applicable  PPA  expires or  terminates  prior  to  such  date,  in  which  case  the  Warranty Period shall end on the date on which such PPA expires or terminates. For the  avoidance  of  doubt,  the  Warranty  Period  shall  in  all  events  end,  with  respect  to  each  Facility, at the expiration of the Extended Warranty Period.   “Warranty Specifications” means the Performance Warranty, the Performance Guaranty  and the Efficiency Warranty.   “2017  ESA  Project  Company”  means  2017  ESA  Project  Company,  LLC,  a  Delaware  limited liability company.   “2017 Fuel Cell Operating Company” means 2017 Fuel Cell Operating Company I, LLC,  a Delaware limited liability company.    Section 1.2 Other Definitional Provisions.           (a) As used in this Agreement and in any certificate or other documents made    or delivered pursuant hereto or thereto, financial and accounting terms not defined in    this  Agreement  or  in  any  such  certificate  or  other  document,  and  financial  and    accounting terms partly defined in this Agreement or in any such certificate or other    document to the extent not defined, will have the respective meanings given to them    under GAAP.  To the extent that the definitions of financial and accounting terms in this    Agreement  or  in  any  such  certificate  or  other  document  are  inconsistent  with  the    meanings of such terms under GAAP, the definitions contained in this Agreement or in    any such certificate or other document will control.           (b) The words “hereof”, “herein”, “hereunder”, and words of similar import    when used in this Agreement will refer to this Agreement as a whole and not to any    particular provision of this Agreement.  Section references contained in this Agreement    are  references  to  Sections  in  this  Agreement  unless  otherwise  specified.   The  term    “including” will mean “including without limitation”.           (c) The definitions contained in this Agreement are applicable to the singular    as well as the plural forms of such terms and to the masculine as well as to the feminine    and neuter genders of such terms.           (d) Any  agreement  or  instrument  defined  or  referred  to  herein  or  in  any    instrument  or  certificate  delivered  in  connection  herewith  means  (unless  otherwise    indicated herein) such agreement or instrument as from time to time amended, amended    and  restated,  modified  or  supplemented  and  includes  (in  the  case  of  agreements  or    instruments) references to all attachments thereto and instruments incorporated therein.           (e) Any references to a Person are also to its permitted successors and assigns.           (f) References to any statute, code or statutory provision are to be construed as    a reference to the same as it exists as of the Original PUMA Agreement Date, Purchase    Date or date a Party performed or was required to perform an obligation hereunder (as    applicable), and include references to all bylaws, instruments, orders and regulations for                                   20  





 






         the  time  being  made  thereunder  or  deriving  validity  therefrom  unless  the  context           otherwise requires; provided, however, that, subject to Section 2.8, the determination of           whether a Facility is ITC eligible shall be as of the Placed in Service Date.                                     ARTICLE II.                               PURCHASE AND SALE          Section 2.1 Appointment of Seller as Buyer’s EPC Provider.  Subject to Section 14.13,   Buyer hereby appoints Seller to act as Buyer’s provider of all design, engineering, procurement   and construction services necessary in connection with the installation, connection, testing, start-  up, delivery and commissioning operation of the Facilities to be installed pursuant to each PPA   and related Site License, and Seller hereby accepts such appointment and agrees to provide all   such  services,  labor,  materials,  supplies,  equipment,  and  tests  for  design,  engineering,  and   construction services provided by Seller, to or on Buyer’s behalf and on the terms and conditions   set forth in this Agreement, each PPA and related Site License (collectively, “EPC Services”).  For   clarity, Seller’s entire consideration for performing all such required services with respect to a  Facility through Commencement of Operations for such Facility shall be the Purchase Price for  such Facility, and Seller shall bear the financial risk regarding any cost overruns, claims from  subcontractors  or  other liabilities.   Following  Commencement  of  Operations  with  respect  to  a  Facility,  Seller shall  be entitled to  Services  Fees  in  respect of  Facility Services  rendered  with  respect to such Facility as described in Section 4.3.          Section 2.2 Purchase Orders. In connection with the Original PUMA Agreement Date   and thereafter not later than ten (10) Business Days prior the first date of each Calendar Quarter,   Seller will provide to Buyer a tranche notice substantially in the form hereto attached as Exhibit G   (each, a “Tranche Notice”), which shall contain the aggregate System Capacity of the Facilities   which are to be installed in connection with the applicable PPAs set forth in Annex D hereof that   Seller expects will be included in a Tranche and that Seller reasonably expects will satisfy the   applicable Deposit Milestones in such Calendar Quarter.  So long as no Seller Default has occurred   and is continuing hereunder, Buyer will, within five (5) Business Days of such notice, submit to   Seller a Purchase Order for such Facilities.  So long as no Buyer Default has occurred and is   continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning   and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a   Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver   the Bloom Systems comprising such Facility under such Purchase Order as contemplated by this   Agreement.           Section 2.3 Invoicing of Purchase Price.                    (a) Seller shall invoice Buyer hereunder as follows:                       (i)   on  the  date  that  Seller  has  satisfied  the  Deposit  Milestone               Requirements for a Tranche, [***] per kW ($[***]/kW), calculated on the basis of               the System Capacity of the Bloom Systems comprising the Facilities included in               such Tranche (and, for clarity, Seller shall not invoice any amount in respect of any               Purchase Price Adder(s) applicable to such Facilities;                                           21        [***] Confidential Treatment Requested 





 






               (ii)  on the Shipment Date for the last Bloom System(s) in each Facility,                          (A)  In the event that such Facility was previously included in a                         Tranche for which Buyer has made payment, [***] per kW                         ($[***]/kW) for such Facility calculated based on the System                         Capacity of the Bloom Systems comprising such Facility plus                         100% of the Purchase Price Adder(s) applicable to such                         Facility, if any; and                          (B)  In the event that such Facility was not previously included                         in a Tranche for which Buyer has made payment, [***] per kW                         ($[***]/kW) for such Facility calculated based on the System                         Capacity of the Bloom Systems comprising such Facility plus                         one hundred percent (100%) of the Purchase Price Adder(s)                         applicable to such Facility, if any; and                  (iii) upon Commencement of Operations for each Facility, the remainder           of the Purchase Price, if any, not previously paid (calculated, and adjusted from time to           time, in accordance with this Agreement), for such Facility, plus one hundred percent           (100%)  of  the  Taxes  to  be  paid  by  Buyer  pursuant  to  Section  2.3(c)  for  such           Facility.              (b) Each  invoice  issued  pursuant  to  Section  2.3(a)(ii)  and  Section 2.3(a)(iii)       shall include the following information for each applicable Facility:                 (i)   Buyer’s Purchase Order number;                 (ii)  the Tranche (indicated by the invoice date) in which such Facility is           deemed to be included;                  (iii) the Site on which such Facility is installed or will be installed;                  (iv)  the  serial  number  and  System  Capacity  of  each  Bloom  System           comprising such Facility, and purchase order number;                 (v)   whether or not any AOM(s), Battery Solution, Low-Pressure Gas          Booster(s) and/or UPM(s) are to be installed in connection with such Facility;                 (vi)  the Purchase Price, including details of (A) all amounts previously           paid towards or credited against the Purchase Price, and (B) all amounts remaining           due and payable on the Purchase Price;                  (vii) the Shipment Date or expected Shipment Date, as applicable;                   (viii) the Purchase Date or expected Purchase Date, as applicable; and                   (ix)  such other information as Buyer may reasonably request.                                      22   [***] Confidential Treatment Requested 





 






        (c) Buyer shall pay all state and local sales, use or other transfer Taxes required    to be paid by Buyer and attributable to the transfer of the Facility to Buyer, except that    Seller shall be responsible for and pay any Taxes arising as a result of any components    of such Facility or any Facility being acquired from a source outside of the United States.   Section 2.4 Payment of Purchase Price.             (a) Buyer shall pay all outstanding Purchase Price invoices on a monthly basis    in accordance with the terms of this Section 2.4.           (b) Not less than ten (10) Business Days prior to the Invoice Due Date for all    invoices to be paid by Buyer for the applicable calendar month, Seller shall deliver to    Buyer:               (i)   A  draft  Payment  Notice,  setting  forth  the  anticipated  aggregate        Purchase Price for all Tranches and/or Facilities to be paid in such month; and               (ii)  Supporting  documentation  (i.e.,  Seller’s  Deposit  Milestone        Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the        achievement  of  all  applicable  Milestones  achieved  by  the  applicable  Tranches        and/or Facilities prior to the date of such draft Payment Notice.           (c) Not less than three (3) Business Days prior to the applicable Invoice Due    Date for all invoices to be paid by Buyer for such calendar month, Seller shall deliver    to Buyer:               (i)   an  executed  Payment  Notice,  setting  forth  the  actual  aggregate        Purchase Price for all Tranches and/or Facilities to be paid by Buyer in such month,        which amount shall in no event exceed the amount notified by Seller to Buyer in        the applicable draft Payment Notice except to the extent of any adjustment to such        amount resulting from Section 2.8;                (ii)  Supporting  documentation  (i.e.,  Seller’s  Deposit  Milestone        Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the        achievement of all applicable Milestones achieved as of such date for all Milestones        achieved by the applicable Tranches and/or Facilities between the date on which        the  draft  Payment  Notice  was  delivered  and  the  date  on  which  the  executed        Payment Notice was delivered.           (d) Buyer shall, on the applicable Invoice Due Date indicated in the executed    Payment Notice delivered by Seller pursuant to Section 2.4(c), make Purchase Price    payments for each Tranche and/or Facility included in such Payment Notice for which    Seller  has  delivered  all  applicable  documentation  evidencing  the  satisfaction  of  the    applicable Milestone(s).            (e) If Buyer defaults in any payment when due for any Facility (other than with    respect to amounts being disputed in good faith), Seller may, on not less than five (5)    Business Days prior notice to Buyer, at its option and without prejudice to its other                                   23  





 






remedies, (i) suspend performance of its obligations hereunder for such Facility, or defer  delivery  of  such  Facility  to  Buyer  and  (ii) require  that  (until  all  such  outstanding  payment defaults have been cured) the payment of the portion of the Purchase Price for  future Facilities required under Section 2.3(a)(ii) and Section 2.3(a)(iii) above be made  immediately prior to the Shipment of the applicable Bloom Systems, but Seller shall not  be  able  to  otherwise  suspend  performance  of  its  obligations  hereunder  for  other  Facilities for which no such default exists.         (f) Seller  shall  promptly  pay  all  subcontractors  working  on  the  Facilities  delivered and installed under this Agreement (including, for clarification, subcontractors  working  off-Site),  and  shall,  at  the  time  of  each  payment  made to  any  such  subcontractor, obtain a partial or final lien waiver, as applicable, in a form approved by  Buyer, and promptly provide Buyer with a copy of each such lien waiver.  Seller shall  discharge any Liens by such subcontractors within thirty (30) days of receiving notice  thereof.   Seller  shall  release  all  Liens  in  favor  of  Seller  on each  Facility  upon  final  payment of the Purchase Price for such Facility.  Upon the failure of Seller to discharge  a Lien required to be discharged under this Section 2.3, or else promptly to provide a  bond in an amount and from a surety acceptable to Buyer to protect against such Lien,  in each case, within thirty (30) days after Seller is aware of the existence thereof, Buyer  may, but shall not be obligated to, pay, discharge or obtain a bond or security for such  Lien and, upon such payment, discharge or posting of security therefor, shall be entitled  immediately to recover from Seller the amount thereof, together with all reasonable and  necessary  expenses  actually  incurred  by  Buyer  in  connection  with  such  payment  or  discharge, or to set off all such amounts against any amounts owed by Buyer to Seller  hereunder.   After  receipt  of  the  portions  of  the  Purchase  Price for each Facility as  provided in Section 2.3(a)(i) and Section 2.3(a)(ii), Seller will issue a statement of the  balance of the Purchase Price for such Facility, being the amount which, once paid to  Seller, will cause Seller to release its lien on the Facility.  Seller hereby agrees that third  parties may rely on each such statement.         (g) Notwithstanding the foregoing in this Section 2.3 or any other provision of  this Agreement to the contrary, if Buyer (i) admits in writing its inability to pay its debts  generally as they become due; (ii) files a petition or answer seeking reorganization or  arrangement under the federal bankruptcy laws or any other Legal Requirements of the  United  States  of  America  or  any  State,  district  or  territory  thereof;  (iii) makes  an  assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of  the whole  or any  substantial part  of  its  assets;  (v) has  a  petition  in  bankruptcy  filed  against  it,  and  such  petition is  not dismissed  within ninety (90)  days  after the  filing  thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree  appointing a receiver of the whole or any substantial part of Buyer’s assets, and such  order, judgment or decree is not vacated or set aside or stayed within ninety (90) days  from the date of entry thereof; or (vii) under the provisions of any other law for the relief  or aid of debtors, any court of competent jurisdiction shall assume custody or control of  the whole or any substantial part of Buyer’s assets and such custody or control is not  terminated  or  stayed  within ninety  (90)  days  from  the  date  of  assumption  of  such  custody or control, then Seller shall have no obligation to deliver any Facility hereunder,  or if Shipment for the Bloom Systems comprising a Facility has already occurred, Seller                                 24  





 






        shall have the right to require immediate payment of any amount due under Section          2.3(a)(ii) and the right to require that the final payment of the Purchase Price for such          Facility be made promptly (but no earlier than Commencement of Operations of such          Facility).                  (h) With respect to any payment due from one party to the other pursuant to          this Agreement, unless being contested in good faith, interest shall accrue daily at the          lesser  of  a  monthly  rate  of  one  and  five-tenths  percent  (1.5%) or  the  highest  rate          permissible by law on the unpaid balance.         Section 2.5 Purchase and Sale of Facilities.  Upon the “Purchase Date” for a Facility,  which date shall be the date on which Delivery of all Bloom Systems comprising such Facility  occurs and the Facility Purchase Conditions for the Facility are and remain true and correct, (a)  Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall  have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to  such Facility, (b) except as set forth in Section 3.3(b), the sale of such Facility shall occur, and (c)  Seller shall provide Buyer with (i) a Bill of Sale evidencing the same, and (ii) lien waivers from  each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor  has  been  paid  all  amounts  owed  to  it  as  of  the  date  of  the  lien  waiver  (the  foregoing  being  “Purchase”).         Section 2.6 PPA Termination and Re-Purchase of Facilities.                   (a) If a PPA is terminated with respect to one or more Facilities prior to the date          such  Facilities  have  achieved  Commencement  of  Operations,  then (i)  Seller  shall          repurchase  the  Facilities  from  Buyer  on  an  AS  IS  basis  by  refunding  to  Buyer  all          payments of the Purchase Price paid as of such date, (ii) title to such Facilities, if held          by Buyer, shall pass back to Seller upon payment of such refund amount and Buyer’s          delivery  of  a  Bill  of  Sale  to  Seller  evidencing  such  transfer  of  title,  and  (iii)  the          applicable Bloom Systems shall no longer constitute a portion of the Portfolio.  If a          Facility is repurchased by Seller pursuant to this Section 2.6(a) and any portion of such          Facility  is  located  at  the  Site,  Seller  shall  at  its  sole  cost and  expense  remove  the          applicable Bloom Systems and any other ancillary equipment (including the concrete          pad and any other improvements to the applicable Site to the extent required under the          applicable  PPA  or  Site  License)  from  the  applicable  Site,  restoring the Site to its          condition before the installation, including closing all utility connections and properly          sealing any Site penetrations, in the manner required by all Legal Requirements and the          applicable PPA or Site License.  In the event that in connection with such termination          Buyer is entitled to any reimbursement of costs from the applicable PPA Customer for          removing such Bloom Systems and other ancillary equipment from the applicable Site          or for restoring the Site to its condition before the installation, the Parties will cooperate          in good faith in order to secure such reimbursement and Buyer will promptly remit to          Seller  any  such  amounts  actually  received  from  such  PPA  Customer  in  respect  of          removal or restoration work performed by Seller for the applicable Site, net of any Buyer          out-of-pocket costs incurred to collect such reimbursement from the PPA Customer.                                          25  





 






                        (b) Subject to Section 12.7(c), in the event that (i) a PPA Customer terminates    a  PPA  with  respect  to  a  Facility  prior  to  its  expiration  and  (ii) the applicable PPA    Customer pays Buyer the termination value due under the applicable PPA, then Buyer    shall reimburse Seller for any costs or expenses incurred in connection with the removal    of such Facility.   Section 2.7 [Reserved].    Section 2.8 Purchase Price Adjustment for Portfolio Price Changes.            (a) [Reserved].            (b) Not  less  than  ten  (10)  Business  Days  prior  to  the  end  of  each  Calendar    Quarter, Seller shall deliver to Buyer a revised Project Model, reflecting the Base Case    Model  updated  solely  to  reflect  (i)  with  respect  to  each  Facility  that  has  achieved    Commencement of Operations, (A) the dates on which Buyer paid each portion of the    Purchase Price for such Facility and the amount of such payments, and (B) the date on    which such Facility achieved Commencement of Operations, (ii) with respect to each    Facility  that  Seller  reasonably  expects  to  achieve  Commencement  of  Operations    following the delivery of such revised Project Model, (A) the dates on which Buyer has    paid, or is expected to pay, each portion of the Purchase Price for such Facility and the    amount of such payments, and (B) the date on which Seller reasonably expects such    Facility  to  achieve  Commencement  of  Operations,  (iii)  the  inclusion  or  deletion,  as    applicable, of any Facilities that have been added or deleted from the PPAs during such    Calendar Quarter, and (iv) changes in the availability and amount of tax credits and other    incentives.           (c) The  Parties  will  mutually  agree  on  an  adjusted  Purchase  Price  for  the    Facilities within five (5) Business Days of Buyer’s receipt of the revised Project Model    under Section 2.8(b), which shall be used as (i) the final Purchase Price for all Tranches    and Facilities invoiced and paid in the current Calendar Quarter, and (ii) the Purchase    Price for purposes of all invoices delivered in the following Calendar Quarter (until the    date of the next adjustment made pursuant to this Section 2.8).  Within five (5) Business    Days of the Parties’ agreement on such adjusted Purchase Price, Buyer shall amend and    reissue each invoice previously delivered by Seller to Buyer for the current Calendar    Quarter to reflect the Purchase Price determined pursuant to this Section 2.8(c).  For the    avoidance  of  doubt,  no  adjustments  shall  be  made  hereunder  with  respect  to  any    payments  from  Buyer  to  Seller  made  in  any  Calendar  Quarter  prior  to  the  current    Calendar Quarter.  Without in any way limiting the provisions of Section 9.1(g), Seller    makes no representation, warranty or guaranty regarding Buyer’s expected rate of return    as a result of the purchase of the Facilities hereunder.            (d) Following the reissuance of invoices as described in Section 2.8(c), if Buyer    has made any over- or under-payments in respect of such invoices, Seller shall apply    such over-payments as a credit against, or addition to, the amount owed by Buyer with    respect to the invoices to be paid on the final Invoice Due Date of the current Calendar    Quarter; provided, however, that if such adjustment results in Buyer owing no payments                                   26  





 






             to Seller with respect to such invoices but fails to fully compensate Buyer for prior over-          payments,  Seller  shall  remit  the  remaining  balance  of  any  over-payments  to  Buyer           within thirty (30) days following the applicable Invoice Due Date.                                    ARTICLE III.        DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND BALANCE OF                                    FACILITIES         Section 3.1  Access  to  Site.   Seller  shall  be  responsible  for  ascertainment of  the   suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground   conditions for construction of the Facilities.  As between Seller and Buyer, Seller shall be solely   responsible for all Site Preparation Services at Seller’s cost.  Buyer shall provide Seller with access   to the Sites in a manner consistent with the applicable PPAs and Site Licenses to permit Seller to   deliver and install each Bloom System and the BOF to the applicable Sites and to connect the   applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as   applicable.  If a PPA Customer requires a change in the location of a Site from that specified in a   Purchase  Order  or  applicable  Site  License,  whether  temporary  or  permanent,  (a) Buyer  shall   submit a written notice to Seller setting forth the details of such location change, (b) Seller shall   administer and perform the Site Preparation Services as required for that changed location to the   extent required and in accordance with the relevant PPA and Site License, and (c) to the extent   that such PPA Customer pays to Buyer an amount under the applicable PPA or Site License in   connection with such required change in the installation location of a Site, Buyer shall pay the  same to Seller promptly upon receipt from such PPA Customer, except that Buyer shall retain the  portion  of  such  amount  equaling  any  applicable  amount  to  compensate  Buyer  for  lost  output,  environmental  attributes,  and  environmental  incentives  during  the  period  the  Facility  is  consequently not producing electricity.         Section 3.2  Delivery of Bloom Systems.                  (a) Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site,           in accordance with the Uniform Commercial Code then in effect.  Title to each Bloom           System shall pass to Buyer upon Buyer’s Purchase of such Bloom System, and such title           shall be good and marketable and free of all Liens, except for Permitted Liens.  From           and after Buyer’s Purchase of each Bloom System all risk of loss or damage to such           Bloom System shall be borne by Buyer.  Seller shall manage its supply chain and place           orders with suppliers with respect to Components and other materials, supplies, and           equipment so as to support the Facilities sold to Buyer hereunder.          Section 3.3 Delivery of Balance of Facility; Installation of Bloom Systems.                  (a) Seller  shall  be  responsible  for engineering,  procuring,  constructing,           installing and commissioning the BOF, and Seller shall cause each Facility to achieve           Commencement of Operations without any compensation or reimbursement by Buyer,           other than the Purchase Price under this Agreement and payments pursuant to Section           3.1(c), if any, in accordance with the following (collectively, the “BOF Work”):                                             27  





 






                       (i)   Seller  shall  be  solely  responsible  for  the  means,  methods,   techniques, sequences, and procedures employed for execution and completion of   the BOF Work, and shall perform and complete all BOF Work in accordance and   consistent with the Performance Standards;          (ii)  Seller shall cause to be performed any and all studies, reports and  applications (in the name of Buyer) that are necessary for interconnection to the  distribution and transmission facilities of the Transmitting Utility;         (iii) Seller  shall  perform  the  BOF  Work  and  act  at  all  times  as  an  independent  contractor.   Seller  shall  at  all  times  maintain  such  supervision,  direction and control over its employees, agents, subcontractors and representatives  as is consistent with and necessary to preserve its independent contractor status.   Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire   one or more subcontractors to perform any of Seller’s work under this Agreement   on  its  behalf.   Each  subcontractor  must  be  a  reputable,  qualified  firm  with  an   established  record  of  successful  performance  in  its  trade,  and shall  obtain  and   maintain such insurance coverages having such terms as set forth in Annex B to the   extent applicable to the work to be performed by such subcontractor.  Seller shall   not  be  relieved  from  its  obligation  to  provide  any  services  hereunder  if  a   subcontractor agrees to provide any or all of such services.  No subcontractor is   intended  to  be  or  will  be  deemed  a  third-party  beneficiary  of  this  Agreement.    Nothing  contained  herein  shall  create  any  contractual  relationship  between  any   subcontractor and Buyer or obligate Buyer to pay or cause the payment  of  any   amounts to any subcontractor, including any payment due to any third party.  Seller   shall not permit any subcontractor to assert any Lien against any Facility or Bloom   System,  or  attach  any  Lien  other  than  a  Permitted  Lien.   None  of  Seller’s   employees, subcontractors or any such subcontractor’s employees will be or will   be considered to be employees of Buyer.  Seller shall be fully responsible to Buyer   for the acts and omissions of each such employee or subcontractor.  To the extent   that  any  PPA  Customer  has  the  right  to  request  removal  of  any  Seller  or   subcontractor personnel under a PPA or Site License, Seller shall cooperate with   Buyer in complying with the terms and conditions of such PPA or Site License   including by, upon written notification by Buyer that the performance, conduct or   behavior  of  any  Person  employed  by  Seller  or  one  of  its  subcontractors  is   unacceptable to the applicable PPA Customer, promptly stopping such Person from   performing  any  obligations  hereunder  and/or  removing  such  Person  from  the   applicable Site.  Additionally, Buyer may bring to Seller’s attention any concerns   regarding the performance, conduct or behavior of any Person employed by Seller   or one of its subcontractors, which concerns Seller shall consider in good faith and   thereafter take such action as Seller deems appropriate under the circumstances.    Seller will be fully responsible for the payment of all wages, salaries, benefits and   other compensation to its employees and for payment of any Taxes due because of   the BOF Work;                               28  





 






                            (iv)  Seller shall, and shall cause each of its subcontractors to, install the        Bloom Systems and the BOF at each Site using items that are new, and undamaged        at the time of such use or installation;               (v)   Seller shall install, test, and cause the Commencement of Operations        with respect to each Facility within ninety (90) days of the date of Seller’s Deposit        Milestone Certificate as provided in Section 3.4;               (vi)  Seller shall pay all amounts owed to its subcontractors and vendors        in connection with the performance of the BOF Work on a timely basis and shall        hold  Buyer  harmless  against  any  claims  asserted  by  such  subcontractors  and        vendors;               (vii) Seller  shall  obtain  and  maintain,  or  cause  to  be  obtained  and        maintained (where required, in the name of Buyer or each PPA Customer, as the        case may be), all Permits necessary to design, install, commission,  construct,        occupy, and operate each Facility at each Site;                (viii) Seller  shall  cause  BOF  Work  to  be  completed  in  a  good  and        workmanlike manner, free from defective materials, and in accordance with the        Performance Standards, free and clear of all Liens other than Permitted Liens; and               (ix)  If Seller, at any time during the Warranty Term, becomes aware of        any potential material manufacturing or design defect in any Facility, including any        Component thereof, it will notify Buyer of the defect within a reasonable time, not        to exceed five (5) Business Days after Seller first becomes aware of such defect.           (b) Title and risk of loss to each component of such BOF Work for the Site    which is not performed and provided on assets owned by a relevant PPA Customer or    relevant Transmitting Utility shall pass to Buyer upon the later of the Delivery Date of    the first Bloom System at the Site and the date such component is installed as part of the    Facility at the Site.  For the avoidance of doubt, the passage of title and risk of loss with    respect to each Facility shall have passed to Buyer prior to such Facility being Placed in    Service.  From and after the Commencement of Operations of the Facility of which    particular BOF Work is a part, all risk of loss or damage to such BOF Work which is    owned by Buyer shall be borne by Buyer.           (c) Without in any way limiting Seller’s obligations pursuant to this Section    3.3, Seller shall perform all design, permitting and installation work in accordance with    the provisions of Schedule 3.3 attached hereto.     Section 3.4 Commissioning; Commencement of Operations.           (a) Upon  the  occurrence  of  the  Delivery  for  a  Bloom  System,  Seller shall    promptly perform the following, at Seller’s sole cost:               (i)   Seller  shall  provide  installation,  inspection,  commissioning  and        start-up for each Bloom System and the BOF at the applicable Site in accordance                                   29  





 






                    with the installation manuals provided for such Bloom System and the applicable      Site  License,  and  in  conformance with  Prudent  Electrical  Practices.   Without      limitation of the foregoing, each Facility will be connected by Seller to the natural      gas source, water source and SCADA at the applicable Site and to the applicable      Facility’s Electrical Interconnection Facilities;             (ii)  Prior to Commencement of Operations of each Facility, Seller shall,     perform an acceptance test not less stringent than the testing applied to its fuel cell     power generating systems for any other major customer of Seller of each Bloom     System incorporated into such Facility and the applicable BOF in the presence of     Buyer (if Buyer elects to attend), and such Bloom Systems and applicable BOF     shall have passed such test. Seller will, upon request by Buyer, inform Buyer of the     date on which it expects to conduct the acceptance test of any Facility(ies) and     cooperate with Buyer to provide Buyer with the opportunity to observe such testing     to the extent practicable, provided, that in no event shall Seller be required to delay     the performance of any acceptance test in order to allow Buyer to witness such test     if all other pre-testing requirements have been satisfied;             (iii) Seller shall cause Commencement of Operations for such Facility to     occur within ninety (90) days of the date of Seller’s Deposit Milestone Certificate.      Seller  shall  promptly  certify  in  writing  to  Buyer  when  each  Facility  achieves     Commencement of Operations;            (iv)  Seller  will  provide  to  Buyer,  prior  to  the  Commencement  of     Operations,  a  single  line  diagram  of  the  Facility  installation,  electronic  system     manuals, copies of all relevant design documents, and printed system manuals, in     each case relating to such Facility (each in paper copy and native electronic format).      Seller  shall  deliver  to  Buyer  any  other  documentation  necessary  to  establish     placement in service for purposes of Section 48 of the Code;            (v)   Until Commencement of Operations of the Facility, Seller shall be     responsible for providing physical security of such Facility;            (vi)  If  requested  by  Buyer,  Seller  shall  provide  operator  training  and     associated training materials to personnel and representatives of Buyer sufficient to     instruct Buyer on operation of such Facility in conformance with Prudent Electrical     Practices; and            (vii) Following Commencement of Operations of a Facility, Seller shall     promptly remove all waste materials and rubbish from and around the Site as well     as  all  of  its  tools,  construction  equipment,  machinery,  and  surplus  materials  as     reasonably necessary to restore each Site to a condition reasonably satisfactory to     such PPA Customer or as otherwise required by the applicable Site License.           (b) Seller’s  services  under  Section  3.1  through  Section  3.4  shall  be  fully  comprehensive of all services, labor, and equipment necessary to complete installation  of a fully commissioned and operating Facility in accordance with this Agreement, the                                 30  





 






                  applicable  PPA,  the  applicable  Interconnection  Agreement,  and  the  applicable  Site    License.           (c) Seller shall be responsible, at its sole cost and expense, for maintaining and    complying with all Permits required to perform its services under this Agreement and    Buyer agrees to cooperate with and assist Seller in obtaining such Permits.           (d) To the extent any Facility has not achieved Commencement of Operations    within the earlier of (i) one hundred eighty (180) days of the payment of the portion of    Purchase  Price  set  forth  in  Section  2.3(a)(ii)  for  such  Facility  and  (ii)  the    Commencement of Operations Date Deadline, then Buyer shall have the ongoing right    for the period from the end of that date until the earlier of (A) the date that such Facility    has achieved Commencement of Operations and (B) ninety (90) days after such date, to    elect that Seller repurchase and remove such Facility from the applicable Site, in which    case (1) Seller shall repurchase the Facility from Buyer on an AS IS basis by refunding    to  Buyer  all  payments  of  the  Purchase  Price  paid  as  of  such  date, (2) title to such    Facilities shall pass back to Seller upon payment of such refund amount and Buyer’s    delivery of a Bill of Sale to Seller evidencing such transfer of title, and (3) the applicable    Facility shall no longer constitute a portion of the Portfolio.  If a Facility is repurchased    by Seller pursuant to this Section 3.4(d), Seller shall at its sole cost and expense remove    the applicable Bloom Systems and any other ancillary equipment (including the concrete    pad and any other improvements to the applicable Site to the extent required under the    applicable  PPA  or  Site  License)  from  the  applicable  Site,  restoring the Site to its    condition before the installation, including closing all utility connections and properly    sealing all Site penetrations, in the manner required by all Legal Requirements and the    applicable PPA or Site License.           (e) Without in any way limiting Seller’s obligations pursuant to this Section    3.4, Seller shall perform all commissioning work in accordance with the provisions of    Schedule 3.4 attached hereto.           (f) Within  ninety  (90)  days  of  a  Facility  achieving  Commencement  of    Operations, Seller shall deliver to Buyer each of the Seller Deliverables indicated on    Exhibit C as items to be delivered following Commencement of Operations.   Section 3.5 Insurance.  Seller shall maintain the insurance described in Annex B.   Section 3.6 Disposal; Right of First Refusal.           (a) Except as set forth in Section 14.4, in the event that Buyer decides to scrap,    abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller    shall have the right but not the obligation to obtain title to the Bloom System and remove    the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible    for remediation of the Site in which the Bloom System was located.              (b) Except as set forth in Section 2.4 or Section 14.4, in the event that Buyer or    its Affiliates desire to sell or otherwise transfer title to any Bloom System to a transferee    other than a PPA Customer or an Affiliate of Buyer, Buyer shall notify Seller and Seller                                   31  





 






             shall have the right of first refusal to purchase or acquire the Bloom System on the same           terms and conditions of such sale.  In the event that Seller exercises such right of first           refusal, Seller shall, promptly following payment of the purchase price of such Bloom           System, remove the Bloom System at Seller’s cost, including the remediation of the Site           in which the Bloom System was located in accordance with the terms of the applicable           PPA and/or Site License.           Section 3.7  Third Party Warranties.  If any express or implied warranties, indemnities,   guaranties, remedies, covenants and other rights which any subcontractor or supplier has made to   Seller with respect to any good, service, or other deliverable furnished under this Agreement in  respect of a Facility (each a “Third Party Warranty”) would provide an additional rights to Buyer   beyond the warranties under ARTICLE V, then (a) such Third Party Warranty providing additional   rights will be for the benefit of and passed through to Buyer to the fullest extent possible, (b) Seller   transfers  and  assigns  to  Buyer  all  of  Seller’s  right,  title  and  interest  under  such  Third  Party   Warranty to exercise such additional rights, and (c) Seller hereby appoints Buyer as attorney-in-  fact coupled with an interest to exercise and enforce all such additional rights in the name of either   Buyer  or  Seller.   Nothing  in  this  Section  3.7  will  limit  Seller’s  obligations  to  Buyer  under   ARTICLE V.  Buyer agrees that it will not look to Seller for any claims covered by Third Party   Warranties in respect of the Battery Solution; provided, however, that this shall not relieve Seller   of any liability or obligation of Seller arising in connection with any failure of the Battery Solution   that is attributable to a Bloom Component Defect.          Section 3.8 Access; Cooperation.  Seller shall provide to Buyer such other information   that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the   permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities,   and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to   time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties   with respect to such information.  Seller shall not take any action or omit to take any action as   would cause Buyer in any material respect to violate any Legal Requirements, and to the extent   that Seller has knowledge of any such existing or prospective violation take, or cause to be taken,   commercially reasonable actions, to redress or mitigate any such violation, which action shall be  at Seller’s sole expense if Seller is obligated to perform such action as part of the EPC Services or   Facility Services, and otherwise shall be at Buyer’s sole expense.  Seller shall give to Buyer prompt   written notice of any material disputes with Governmental Authorities.  Seller shall furnish, or   cause  to  be  furnished,  to  Buyer  copies  of  all  material  documents  furnished  to  Seller  by  any   Governmental Authority in respect of Buyer or any Facility.            Section 3.9 Performance Standards.  For the purpose of this Agreement, Seller shall   perform under this Agreement in accordance and consistent with each of the following (unless the   context  requires  otherwise):  (a) plans  and  specifications  subject  to  Permits  under  Legal   Requirements  and  applicable  to  each  Facility;  (b) the  manufacturer’s  recommendations  with   respect  to  all  equipment  and  all  maintenance  and  operating  manuals  or  service  agreements,   whenever  furnished  or  entered  into,  including  any  subsequent  amendments  or  replacements   thereof, issued by the manufacturer, provided they are consistent with generally accepted practices   in the fuel cell industry; (c) the requirements of all applicable insurance policies; (d) preserving all   rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing   or assisting with the enforcement of the applicable warranties, making or assisting in making all                                          32  





 






   claims with respect to all insurance policies; (e) all Legal Requirements and Permits/Governmental  Approvals; (f) any applicable provisions of the Site Licenses, including any landlord rules and  regulations; (g) Prudent Electrical Practices; (h) the relevant provisions of each Interconnection  Agreement; (i) each PPA; (j) the Seller Corporate Safety Plan provided in Exhibit J (as updated by  Seller from time to time, with a copy provided promptly to Buyer); (k) the Seller Subcontractor  Quality Plan provided in Exhibit K (as updated by Seller from time to time, with a copy provided  promptly  to  Buyer);  (l)  all  Environmental  Requirements,  and  (m)  the  LREC  Contract(s)  (collectively, the “Performance Standards”); provided, however, that meeting the Performance  Standards shall not relieve Seller of its other obligations under this Agreement.                                   ARTICLE IV.                               FACILITY SERVICES         Section 4.1 In General.                   (a) During the Warranty Period, in consideration of the Service Fees, Seller          shall service each Facility constituting a portion of the Portfolio so that the Portfolio          performs in accordance with the Warranty Specifications and so that the BOF will not          cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as          more fully set forth in ARTICLE V.  Without limiting the foregoing, Seller agrees to          perform on behalf of Buyer all operations and maintenance obligations in respect of          each Facility under the applicable PPA and Site License in a manner fully consistent          with the terms and conditions of such documents.  The services set forth in this Section          4.1, as more fully described in this ARTICLE IV, are collectively referred to herein as          the “Facility Services.”  For clarity, Seller shall have no authority or responsibility with          respect to the payment or receipt of monies to or from PPA Customers or with respect          to serving or receiving formal notices to or from PPA Customers; provided, however,          that Seller may informally communicate with PPA Customers regarding routine, day-         to-day Facility Services matters.  For so long as Seller is performing Facility Services          in  respect  of  a  Facility,  the  Parties  intend  that  Seller  shall be  responsible  for  all          operational  activities  in  respect  of  such  Facility,  including  the  performance  of  all          obligations to PPA Customers that are required to be performed physically at the Site.           If  a  Party  has  any  uncertainty  regarding  which  Party  is  responsible  for  particular          obligations to PPA Customers, the Party’s Manager shall discuss such matter with the          other Party’s Manager to implement the allocation of responsibility intended by this          Agreement and the Parties thereafter shall, if necessary, amend this Agreement to clarify          the Parties’ agreement regarding such allocation of responsibility.                 (b) Until the expiration of the Extended Warranty Term, upon the expiration of          the Warranty Period with respect to any Facility(ies) Buyer may, at its option, elect to          renew the Warranty Period with respect to such Facility(ies) for a period of one (1)          additional year. The Warranty Period for each Facility shall be automatically renewed          for a period of one (1) additional year at the termination of the existing Warranty Period          if Buyer has not informed Seller in writing of its election to terminate the Warranty          Period at the end of such existing Warranty Period at least thirty (30) days prior to the          final date of such existing Warranty Period.                                          33  





 






                 (c) Notwithstanding  anything  to  the  contrary  herein,  in  the  event  that  the          “Term” of any Customer PPA(s) with respect to any Facility(ies) is extended pursuant          to any provision therein providing for a day-for-day extension thereof, then, the Parties          may agree in writing to extend the Warranty Period for such Facility(ies).  Promptly          following the Parties becoming aware of facts or circumstances resulting in a day-for-         day  extension  the  “Term”  of  any  PPA,  the  Parties  shall  negotiate  in  good  faith  to          mutually agree in writing (an “Extension Agreement”) upon, among other things, any          period during which the Parties agree that the Facility will be idled and the number of          days the Warranty Period for such Facility will be extended.  If the Parties enter into an          Extension Agreement for any Facility, (i) Buyer will not owe any Service Fees during          any days during the Facility idle period specified in the Extension Agreement, (ii) during          such idle period Seller will be obligated to perform only such maintenance services for          the  Facility  as  are  designed  to  facilitate  a  safe  and  reliable restart  of  the  Facility          following such idle period, and (iii) Buyer will owe Service Fees during the number of          days  the  Warranty  Period  for  such  Facility  is  extended  pursuant  to  the  Extension          Agreement.            Section 4.2 Operation and Maintenance Services.  Without limiting, and in furtherance  of, Section 4.1, Seller is hereby granted the right and authority (and, to the extent necessary to  carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Buyer,  to  operate  safely  and  reliably  each  Facility  and  to  maintain  during  the  Warranty  Period  in  accordance with the terms of this Agreement each such Facility in good condition and repair in  accordance  with  the  Warranty  Specifications,  Performance  Standards  and  Prudent  Electrical  Practices.  During the Warranty Period, the specific responsibilities of Seller under this Agreement  shall include the following:                 (a) Facility  Operations.   Seller  shall  ensure  that  all Facility  components  are          operated  and  maintained  safely  and  in  a  manner  designed  to  meet  the  Warranty          Specifications  and  Performance  Standards  and  as  otherwise  required  under  this          Agreement.                 (b) Facility Maintenance.  Seller shall perform, or cause to be performed, all          scheduled and unscheduled maintenance required on the Facilities in order to perform          in accordance with the Warranty Specifications and Performance Standards.  In that          regard,  Seller’s  responsibilities  hereunder  shall include,  without limitation, promptly          correcting  any  Bloom  System  or  BOF  malfunctions,  either  by  (x) recalibrating  or          resetting the malfunctioning Bloom System or BOF, or (y) subject to Section 5.7(b),          repairing  or  replacing  Bloom  System  or  BOF  components  which  are defective,          damaged, worn or otherwise in need of repair or replacement.  Seller agrees to respond          in a timely manner to any Facility outage or other casualty that materially reduces power          output or materially impairs the capability of the Battery Solution to load shift, peak          shave or run (with the Bloom System) in islanded mode, by (i) promptly diagnosing the          source of such issue and, (ii) if on-Site Facility Services are required, using its best          efforts to (A) dispatch field service personnel to the Site within six (6) hours of Seller’s          Knowledge  that  such  on-Site  Facility  Services  are  required,  and (B) cause its field          service personnel to arrive at the applicable Site in order to commence repair services at          the applicable Facility no later than the next Business Day. Without in any way limiting                                         34  





 






                the foregoing, Seller shall in any event comply with any and all response time(s) and/or  corrective activity(ies) required by the applicable PPA(s).         (c) Repair and Replacement of Power Modules.  Buyer agrees that Seller may  replace the power modules included in each Facility with power modules of a different  model provided that such replacement model has been subjected to inspections and tests  performed  by  Seller  which  indicate  that  such  replacement  power module  model  is  reasonably  expected  to  perform  at  least  as  well  as  the  model  it  replaces;  provided,  however,  that,  upon  Buyer’s  request,  Seller  agrees  to  promptly provide  Buyer  with  copies  of  such  inspection  and  test  results.   Notwithstanding  the  foregoing,  Seller  represents to Buyer that it reasonably expects that any repair or replacement of power  modules to be made within five (5) years of the date the applicable Facility was Placed  in Service will have an aggregate value of replaced parts that is less than eighty percent  (80%) of the Facility’s total value (the cost of the new parts plus  the  value  of  the  remaining Facility originally Placed in Service).         (d) Personnel.  Seller shall ensure that all operations and maintenance functions  contemplated  by  this  Section  are performed  by  technically  competent  and  qualified  personnel (the “Service Technicians”).  Seller shall ensure that all Service Technicians:  (i) participate in a maintenance training program and receive confirmation of having  achieved the requisite level of proficiency for the tasks they are assigned to perform,  and  (ii)  attend  periodic  “refresher”  training  programs  to  the  extent  Seller  deems  necessary, in its reasonable judgment.         (e) Spare Parts.  Seller shall establish and maintain an adequate inventory of  spare  Components  in  one  or  more  locations  to  facilitate  scheduled  and  unscheduled  maintenance required on the Facilities.           (f) Programs  and  Procedures.   Prior  to  the  date  of  the  Commencement of  Operations of the first Facility, Seller shall have adopted and implemented programs  and procedures, consistent with Prudent Electrical Practices, intended to ensure safe and  reliable operation of the Facilities.  Seller may update such programs and procedures  from time-to-time during the Term as it may determine appropriate, in its reasonable  judgment and in accordance with Prudent Electrical Practices.  Buyer may, not more  than once per calendar year and at Buyer’s sole cost and expense, review such programs  and  procedures  from  time  to  time  to  confirm  compliance  with  Prudent  Electrical  Practices.  Buyer may from time to time provide comments on any such Seller programs  and procedures and Seller agrees to consider any such comments in good faith; provided  that Buyer’s review and comment on any such program or procedure will not relieve  Seller of any of its obligations under this Agreement.         (g) PPA Customer Complaints.  Seller will promptly provide notice to Buyer if  Seller has received any written communication from any PPA Customer suggesting that  such PPA Customer is dissatisfied with the operational performance of any Facility or  with the manner in which EPC Services or Facility Services have been provided by  Buyer,  Seller  or  any  other  Service  Provider  in  respect  of  any  Facility.   If  any  PPA  Customer  misdirects  any  written  notice  to  Seller  that  should  have  been  delivered to                                 35  





 






                  Buyer  under  the  applicable  PPA  or  Site  License,  Seller  shall  promptly  deliver  such    written notice to Buyer.           (h) PPA Customer Invoicing and Reports.  Until such time as Buyer is able to    receive  such  data  directly  from  the  Facilities,  Seller  will  promptly,  and  in  any  case    within three (3) Business Days following request by Buyer, provide any operational data    and other PPA Documentation necessary for Buyer to invoice any PPA Customer for    the output of any Facility or any other amounts payable by the PPA Customer to Buyer    under the applicable PPA.  Seller will provide reasonable assistance to Buyer in the    performance  of  all  ordinary  course  reporting  and  other  routine management    responsibilities related to the operation of any Facility (including preparing or causing    to  be  prepared  reports,  updated  schedules  and  notices  required to  be  prepared  and    delivered to a PPA Customer pursuant to a PPA).            (i) Operations  and  Maintenance  Procedures.   Without  in  any  way  limiting    Seller’s obligations pursuant to this Section 4.2, Seller shall perform all operations and    maintenance work in accordance with the provisions of Schedule 4.2 attached hereto.           (j) LREC Contracts Administration. Seller will, (i) prepare and submit any and    all filings, notices, communications or other documents that are required under each    LREC Contract on behalf of Buyer, (ii) prepare and promptly pay on behalf of Buyer    (and at no cost to Buyer), any amounts required to be paid by Buyer under each LREC    Contract, and (iii) otherwise perform all routine administrative activities required of    Buyer under each LREC Contract.  Buyer agrees to cooperate with Seller as requested    from time-to-time in connection with Seller’s obligations pursuant to this Section 4.2(j)    (at Seller’s sole cost and expense) including promptly executing any documents required    under each LREC Contract that must, by their nature, be executed by Buyer; provided,    however, that Seller will be responsible for any liability resulting from such cooperation    by Buyer.           (k) Equinix PPA Compliance. Seller will immediately provide notice to Buyer    in the event that Seller knows or has reason to believe that a Compliance Law Violation    (as defined in the Equinix PPA) or a breach of any of the representations, warranties or    covenants  in  Section  7.1(h)(i)  of  the  Equinix  PPA  has  occurred or  will  occur  in    connection with any act or omission by Seller, Seller Affiliate, the Service Provider or    a Seller or Seller Affiliate agent, representative or subcontractor at any tier.    Section 4.3 Service Fees.           (a) Buyer shall compensate Seller for the Facility Services, on a calendar month    basis, by paying Seller the “Service Fees” equal, for each Facility, to (i) (A) the rate (in    $/kW) specified in Exhibit M hereto for such Facility for the applicable calendar month    since the applicable Facility achieved Commencement of Operations, multiplied by (B)    the aggregate System Capacity (in kW) of the Bloom Systems comprising the applicable    Facility, for the applicable calendar month, plus (ii) any additional Services Fees for    such Facility set forth on Exhibit M hereto based on the presence of a Low-Pressure Gas    Booster in such Facility.  If Facility Services are provided by Seller for a particular                                   36  





 






                Facility for only a portion of any calendar month, the Service Fees due with respect to  such partial calendar month shall be pro-rated based on the number of days such Facility  Services were provided in respect of such Facility during the calendar month.         (b) Commencing  on  the  date  each  Facility  achieves  Commencement  of  Operations, with respect to each calendar month of such Facility’s Warranty Period, the  Service Fees shall be invoiced on a separate invoice (and not pursuant to a Payment  Notice) not later than five (5) Business Days prior to the first day of such calendar  month, and, subject to Section 3.4(d) and Section 5.4, shall be payable no later than the  thirty (30) calendar days following such proper delivery of such invoice; provided, that  the pro rata Services  Fees  for  the  calendar  month  in  which  a  Facility  achieves  Commencement of Operations shall be invoiced and paid with the Services Fees for the  subsequent calendar month.  Interest shall accrue, unless being contested in good faith,  daily on the Service Fees not paid when due, at the lesser of the monthly rate of (i) one  and  five-tenths  percent  (1.5%)  and  (ii)  the  highest  rate  permissible  by  law  on  such  unpaid  balance.   Seller  shall  be  under  no  obligation  to  provide  or  perform  services  hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good  faith,  has  not  been  paid  in  full  (or  offset  pursuant  to  Section  3.4(d),  Section  5.7  or  Section 5.8) within thirty (30) days of invoice until such date upon which the Service  Fee has been paid.         (c) If  Buyer  disputes  any  amount  shown  in  an  invoice  issued  by  Seller  in  accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice  amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed  portion of that invoice will be determined in accordance with the  dispute  resolution  procedure set out in Section 14.5.          (d) Any  disputed  portion  of  an  invoiced  amount  which  was  not  paid  under  Section 4.3(c) and is determined as being due to Seller in accordance with the dispute  resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days  of the determination of the dispute in accordance with the procedure set out in Section  14.5 plus, if it is determined in accordance with the dispute resolution procedures that  the disputed portion was not disputed in good faith, interest calculated in accordance  with Section 4.3(b).         (e) Each Party shall have the sole and absolute right to set off any undisputed  amounts to which it is entitled to under this Agreement, including under Section 3.4(d),  Section 5.7 or Section 5.8, against any amounts owed by such Party to the other Party  under this Agreement.  The deduction of any such amounts shall operate for all purposes  as a complete discharge (to the extent of such deduction) of the obligation of such Party  to pay the amount from which such deduction was withheld and made.   Neither the  exercise of, nor the failure to exercise, such right of setoff will constitute an election of  remedies or limit the applicable Party in any manner in the enforcement of any other  remedies that may be available to it.         (f) Buyer will, promptly following receipt thereof, remit to Seller any and all  payments received pursuant to the South Windsor LREC Contract. For the avoidance of                                 37  





 






        doubt, Buyer shall be entitled to retain for its own account any and all payments received          under  the  Middletown  LREC  Contract,  except  that  Buyer  shall  remit  to  Seller  any          amounts  received  as  a  return  of  performance  assurance,  contract  security,  or  other          similar amounts.         Section 4.4 Remote Monitoring; BloomConnect.                   (a) For purposes of monitoring the operational performance and determining          when repair services are necessary, Seller shall monitor and evaluate the information          gathered through remote monitoring of each Facility as well as the maintenance and          inspection Site visits.  For so long as Seller is responsible for the Facility Services in          respect  of  any  Facility,  Seller  shall  provide  Buyer  with  “view only”  access  to  any          information gathered through remote monitoring of such Facility.  Such access shall be          provided in real-time or as close to real-time as practicable.                 (b) Notwithstanding anything to the contrary set forth in Section 4.4(a), Seller          shall provide Buyer with access to the Battery Solution data as may be mutually agreed          by the Parties following the Original PUMA Agreement Date.                   (c) To the extent a PPA Customer has a right to access BloomConnect or any          successor  software  related  to  the  management  of  its  purchase  of  energy  under  an          applicable PPA, Seller shall provide access to such PPA Customer for the same.           Section 4.5 Permits.                 (a) Seller shall be responsible, at its sole cost and expense, for maintaining and          complying  with  all  Permits  required  to  perform  the  Facility  Services  under  this          Agreement, and shall promptly notify Buyer of any material challenges to the status of          a Permit for a Facility, or any other material issues or anticipated material issues relating          to obtaining or maintaining a Permit for a Facility.                  (b) Buyer agrees to cooperate with and assist Seller in obtaining all Permits.                 (c) Seller agrees to assist with the preparation and submission of all filings and          notices of any nature which are required to be made by Buyer under the terms of any          Permit held by Buyer or any Legal Requirements applicable to the Facilities or to Buyer          on account of the Facilities.        Section 4.6  Service  Providers.   Seller  may  appoint  one  or  more  unrelated  third  party(ies), who is appropriately qualified, licensed, and financially responsible, to perform EPC  Services and/or Facility Services throughout the Term (each, a “Service Provider”).  Seller shall  submit such appointment of any Major Service Provider to Buyer for its prior written approval,  which  approval  shall  not  be  unreasonably  withheld  or  delayed.  No  such  appointment  nor  the  approval  thereof  by  Buyer,  however,  shall  relieve  Seller  of  any  liability,  obligation,  or  responsibility resulting from a breach of this Agreement.  “Major Service Provider” means any  Service Provider that Seller proposes to engage to perform any EPC Services and/or any Facility  Services for which the aggregate compensation to such Service Provider in any calendar year is  expected to be greater than [***] of the Services Fees paid to Seller in the applicable calendar year.                                          38  [***] Confidential Treatment Requested 





 






The Parties agree that each of the Major Service Providers set forth on Schedule 4.6 hereof are  approved for all purposes by Buyer as of the Original PUMA Agreement Date and the Agreement  Date.         Section 4.7 Rights to Deliverables.  Buyer agrees that Seller shall, except as expressly  set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any  Training  Materials  provided  to  Buyer  in  connection  with  the  services  performed  hereunder.   “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams,  manuals and other written materials and tangible objects, describing how to operate and maintain  the Facilities, including any corrections, improvements and enhancements which are delivered by  Seller to Buyer, but excluding any Documentation or other data and reports delivered to Buyer in  respect of any Facilities.         Section 4.8 Coordination of Relationship.                 (a) Seller’s Operations Manager.  Seller shall at all times retain an operations          manager (the “Operations Manager”) who shall be dedicated to the overall supervision          and  management  of  performance  of  Seller’s  Facility  Services  obligations  under  this          Agreement.   Seller’s  initial  Operations  Manager  is  set  forth  on  Exhibit  M  attached          hereto.   Seller  may,  from  time  to  time,  designate  another  individual  as  a  proposed          replacement  for  the  Operations  Manager  by  notice  to  Buyer.   Seller’s  suggested          replacement Operations Manager shall be subject to Buyer’s approval, which may not          be unreasonably withheld or delayed in all instances.  Where feasible, Buyer shall have          the opportunity to meet the replacement Operations Manager in person or telephonically          prior to assignment.  Such meeting will take place telephonically except as otherwise          agreed  upon  by  the  Parties.   Nothing  in  this  paragraph  shall  prevent  Seller  from          assigning interim replacements on a temporary basis to enable it to continue to timely          perform  its  obligations  while  assignment  of  a  permanent  replacement  is  pending.           During the Warranty Term, Seller shall not assign the Operations Manager duties that          are inconsistent or that conflict with the obligations of the Operations Manager in respect          of his or her Facility Services duties.                 (b) Buyer Manager.  Buyer will appoint an individual to serve as its primary          contact person with regard to this Agreement (the “Buyer Manager”).  Buyer’s initial          Buyer Manager is set forth on Exhibit M attached hereto.  Buyer may, from time to time,          designate another individual as a proposed replacement for the Buyer Manager by notice          to Seller.                   (c) Manager Meetings.  The Buyer Manager and the Operations Manager will          serve as each Party’s main contact to, and for, the other Party with regard to day-to-day          matters  affecting  the  Parties’  relationship  in  relation  to  EPC Services  and  Facility          Services.  The Buyer Manager and the Operations Manager (or their designees) will          meet, by phone or in person, as often as they feel necessary to monitor and manage such          day-to-day  activities.   Such  managers  shall  operate  by  consensus to the extent          practicable but shall have no authority to amend or waive compliance with the terms          and  conditions  of  this  Agreement,  or  to  approve  actions  of  the Parties  that  are                                         39  





 






         inconsistent  with  this  Agreement.   Any  such  waivers  or  amendments  shall  be           implemented only as described in Section 14.1 or Section 14.2, as the case may be.          Section 4.9 Relocation or Removals of Equinix Power Modules.  In the event that a   PPA permits the applicable PPA Customer to require the relocation or removal of power modules,   Buyer may, upon request made by such PPA Customer pursuant to the provisions of the applicable   PPA, require Seller to relocate or remove power modules pursuant to this Section 4.9.                  (a) In the event that one or more power modules are to be relocated pursuant to           this Section 4.9, Seller shall promptly perform all actions necessary for the removal of           such power modules from the original Site(s) and the transportation to, and reinstallation           and  resumption  of  operations  of,  such  power  modules  at  the  relocation  Site(s)           determined in accordance with the applicable PPA.  Seller shall bear all costs associated           with such relocation unless the applicable PPA Customer is required to bear such costs           pursuant to the terms of the applicable PPA, in which case (i) Seller and Buyer shall           cooperate in good faith to prepare appropriate documentation of such costs, (ii) Buyer           shall use all commercially reasonable efforts to obtain payment from the applicable PPA           Customer as permitted under the applicable PPA, and (iii) Buyer will promptly remit to           Seller all payments obtained from the applicable PPA Customer in respect of such costs           associated with the relocation of the applicable power modules; and                  (b) In the event that one or more power modules are to be removed pursuant to           this Section 4.9, Seller will promptly remove such power modules from the applicable           Facility(ies),  and  the  Parties  will  cooperate  in  good  faith  to identify  one  or  more           Facilities in the Portfolio at which to redeploy such power modules, either as additional           power modules installed in then-empty power module cabinets or to replace operating           power modules nearing the end of their useful life. In identifying such Facilities, the           Parties will consider (among other things) (i) the availability of empty power module           cabinets,  (ii)  wiring  or  other  equipment  limitations,  and  (iii)  any  restrictions  or           limitations  imposed  by  Legal  Requirements,  the  PPAs,  and  the  applicable           Interconnection Agreements. Until a power module is redeployed pursuant to the terms           of this Section 4.9(b), Seller shall be responsible for the handling, shipping and storage           of such power module, and shall bear all risk of loss with respect thereto during such           period. Seller shall bear all costs associated with the redeployment of power modules           pursuant to the terms of this Section 4.9(b).          Section 4.10 Remarketing and Redeployment Assistance.  The Parties acknowledge and   agree that in certain circumstances, Buyer (or certain of Buyer’s Affiliates) may be obligated to   attempt to remarket and redeploy certain Facilities in connection with the termination of one or   more PPAs with respect to such Facilities pursuant to the applicable PPA or an agreement between  Buyer (or the applicable Buyer Affiliate or other predecessor-in-interest) and the applicable PPA  Customer(s) (“Redeployment Agreement”).  In such event, Seller agrees to assist Buyer in its   efforts to resell or redeploy each such Facility, using at least that degree of effort as is required of   Buyer (or the applicable Buyer Affiliate or other predecessor-in-interest) pursuant to the applicable   Redeployment  Agreement;  without  in  any  way  limiting  the  foregoing,  Seller  assistance  shall   include, without limitation, taking the following actions for Buyer’s benefit upon request: (a) on a   nondiscriminatory basis with respect to other similar equipment of Seller, distributing to its sales                                          40  





 






organization information on the availability, location and price of such Facility, and agreeing to  provide to a prospective purchaser of such unit or the output thereof, as applicable, at no cost to  such purchaser a certificate of maintainability with respect to such unit, (b) cause such Facility to  be  reinstalled  at  the  applicable  purchaser’s  site  at  Seller’s  then  prevailing  installation  rates,  including procuring and installing any necessary BOF equipment related thereto, (c) cause such  Facility to be refurbished or reconfigured as necessary or appropriate to facilitate such resale or  redeployment,  and  (d) enter  into  an  operations  and  maintenance agreement  for  all  necessary  operations  and  maintenance  services  necessary  to  operate  such  Facility  following  resale  or  redeployment at Seller’s then prevailing maintenance rates for similar equipment and including a  scope  of  work,  performance  guaranties,  and  indemnification  provisions  similar  in  all  material  respects to the Customer PPA pursuant to which the applicable Facility was originally installed.   All of Seller’s reasonable costs and expenses (including a reasonable allocation of personnel hours)  incurred in connection with the actions described in this Section 4.10 shall be reimbursed by Buyer,  and Seller will reasonably cooperate with Buyer to provide Buyer with any documentation that is  required pursuant to the applicable Customer PPA or Redeployment Agreement to support such  costs and expenses.         Section 4.11 Calculation of Indexed PPA Tolling Rates. In the event that a PPA provides  for the calculation of the Tolling Rate for any System(s) as of any time based on external factors  such as the prevailing price of electricity, electricity transmission and delivery, natural gas prices,  or other factors (each, an “Indexed PPA”), Seller shall perform all required calculations of the  Tolling Rate(s) on behalf of Buyer in accordance with the requirements of the applicable Indexed  PPA,  and  Buyer  hereby  authorizes  Seller  to  act  as  Buyer’s  agent  for  the  limited  purpose  of  performing such calculations and interacting with the applicable PPA Customer(s) to finalize such  Tolling Rate(s) from time to time in accordance with the provisions of the applicable Indexed PPA;  provided,  however,  that,  in  the  event  of  any  dispute  between  Seller  and  the  applicable  PPA  Customer(s) regarding the calculations of the Tolling Rate(s), Seller shall provide prompt notice  to Buyer of such dispute and thereafter Buyer shall have right to participate in and control all  negotiations  and  to  resolve  such dispute  with  the  applicable  PPA  Customer(s)  regarding  the  calculations of such Tolling Rate(s). Seller shall deliver to Buyer the results of Seller’s calculations  of the Tolling Rate(s) under each applicable Indexed PPA at least five (5) Business Days prior to  the date such calculations are to be delivered to the applicable PPA Customer so that Buyer may  confirm Seller’s calculations, and shall not provide any such calculation to the applicable PPA  Customer until Buyer has confirmed Seller’s calculations. In the event that Buyer believes Seller  has  made  any  calculation  errors,  the  Parties  shall  cooperate  in  good  faith  to  resolve  any  discrepancies between Seller’s calculations and Buyer’s calculations prior to the date on which  such calculations must be delivered to the applicable PPA Customer pursuant to the terms of the  applicable  Indexed  PPA,  and  as  between  Buyer  and  Seller  any  discrepancies  that  remain  unresolved after a period of three (3) Business Days of discussions shall be resolved in favor of  Buyer.          Section 4.12 Indexed PPA Tolling Rate Guaranty.                  (a) Seller hereby guarantees that the Tolling Rates pursuant to each Indexed          PPA  will  equal  or  exceed  the  applicable  “Projected  Tolling  Rates”  for  each  of  the          applicable periods set forth on Exhibit L (each such period and the last day of each such          period, a “Calculation Period” and a “Calculation Date,” respectively) during the first                                         41  





 






       twenty years of the term (including any extensions) of such Indexed PPA, and shall         compensate Buyer for any shortfall in revenues pursuant to the Indexed PPAs in the         event  the  aggregate  revenues  realized  using  actual  Tolling  Rates  under  the  Indexed         PPAs do not equal or exceed the aggregate revenues that would have been realized using         Projected Tolling Rates, calculated on a weighted-average, net present value basis (the         “Indexed PPA Tolling Rate Guaranty”). The Indexed PPA Tolling Rate Guaranty shall         be calculated and paid as set forth in this Section 4.12.                (b) Seller  shall  determine,  within  ten  (10)  Business  Days  following  each         Calculation  Date  under  each  Indexed  PPA,  whether  the  Actual  Revenues  for  each         Facility installed under such Indexed PPA equaled or exceeded the Projected Revenues         for such Facility in the immediately-preceding Calculation Period.                 (c) If such calculation indicates that the Actual Revenues for a Facility for the         applicable  Calculation  Period  were  greater  than  the  Projected  Revenues  for  the         applicable  Calculation  Period,  then  the  excess  (in  dollars)  of Actual  Revenues  over         Projected Revenues shall be recorded as a positive balance in the Indexed PPA Tolling         Rate Guaranty Bank, after discounting such amount to reflect the net present value of         such amount on the basis of a [***] cost of capital from Commencement of Operations         of the applicable Facility through the Calculation Date.                (d) If such calculation indicates that the Actual Revenues for a Facility for the         applicable Calculation Period were less than the Projected Revenues for the applicable         Calculation  Period,  then  the  excess  (in  dollars)  of  Projected  Revenues  over  Actual         Revenues  shall  be  recorded  as  a negative  balance  in  the  Indexed  PPA  Tolling  Rate         Guaranty Bank, after discounting such amount to reflect the net present value of such         amount on the basis of a [***] cost of capital from Commencement of Operations of the         applicable Facility through the Calculation Date.                (e) Seller shall report the balance of the Indexed PPA Tolling Rate Guaranty         Bank to Buyer within thirty (30) days of each calculation made pursuant to Section         4.12(c)  and  Section  4.12(d),  including  details  regarding  the  calculation  of  any         adjustments of such Indexed PPA Tolling Rate Guaranty Bank made pursuant to Section         4.12(c) and Section 4.12(d) not previously reported by Seller.                  (f) The sum of all of the amounts recorded from time to time in the Indexed         PPA Tolling Rate Guaranty Bank as of a particular date for a particular Facility pursuant         to Section 4.12(c) and Section 4.12(d) are referred to herein as the “Facility Recorded         Adjustments.”  For purposes of determining the Indexed PPA Tolling Rate Guaranty         Bank as of a given date (each, a “Guaranty Bank Determination Date”) for each Facility         with Facility Recorded Adjustments, the Facility Recorded Adjustments amount shall         be increased on the basis of a [***] cost of capital from Commencement of Operations         of the applicable Facility through the Guaranty Bank Determination Date (the “Adjusted         Facility  Recorded  Adjustments”).  The  aggregate  of  the  Adjusted Facility  Recorded         Adjustments for all Facilities with Facility Recorded Adjustments as of the Guaranty         Bank  Determination  Date  is  equal  to  the Indexed  PPA  Tolling  Rate  Guaranty  Bank         balance as of such date.                                          42   [***] Confidential Treatment Requested 





 






                      (g) Seller shall determine, within ten (10) Business Days following the fifth  (5th), tenth (10th), fifteenth (15th), and, if Projected Tolling Rates are set forth on Exhibit  L for a twenty (20) year term (including any extensions), twentieth (20th) anniversary of  the Commencement of Operations Date of the final Facility installed pursuant to an  Indexed PPA, as described in Section 4.12(f), the Indexed PPA Tolling Rate Guaranty  Bank  balance  using  the  date  of such  anniversary  as  the  applicable  Guaranty  Bank  Determination Date.  Seller shall report the balance of the Indexed PPA Tolling Rate  Guaranty Bank to Buyer within ten (10) days of each such determination made pursuant  to  the  immediately  preceding  sentence,  including  details  regarding  the  calculation  thereof, and, if the Indexed PPA Tolling Rate Guaranty Bank as of such anniversary has  a negative balance, then Seller shall make a payment to Buyer within fifteen (15) days  of receipt of such claim equal to the absolute value of the balance of the Indexed PPA  Tolling Rate Guaranty Bank. Upon payment of such amount, the Indexed PPA Tolling  Rate  Guaranty  Bank  and  all  Facility Recorded Adjustments for all  Facilities  with  Facility Recorded Adjustments as of such Guaranty Bank Determination Date shall be  reset to zero as of such Guaranty Bank Determination Date.         (h) If Seller fails to perform any calculations of Facility Recorded Adjustments  or any calculation of the Indexed PPA Tolling Rate Guaranty Bank balance within the  periods  required  by  this  Section  4.12,  Buyer  may  perform  its  own  calculations  and  inform Seller of the results of such calculations, which shall be binding on the Parties  unless Seller notifies Buyer of any calculation errors within fifteen (15) Business Days  of Seller’s receipt of Buyer’s calculations.         (i) If a Party disagrees with any calculations of the other Party, that Party shall  notify such other Party of such disagreement within fifteen (15) Business Days of receipt  of such other Party’s calculations. Following any notice of dispute under this Section  4.12(f), the Parties shall handle such dispute under Section 14.5.         (j) For  purposes  of  the  Indexed  PPA  Tolling  Rate  Guaranty,  the  following  terms shall have the following meanings:             (i)   “Actual Revenues” means, for a Facility, the product (A) of (x) the      Actual kWh delivered by such Facility in the applicable period, multiplied by (y)      the actual Tolling Rate for such Facility in the applicable period, less (B) a ratable      portion of any Sharing Payments owed by Buyer to the applicable PPA Customer      for such period (calculated on the basis of the applicable Facility’s pro rata portion      of  the  aggregate  System  Capacity  of  all  Facilities  installed  pursuant  to  the      applicable Indexed PPA that have achieved Commencement of Operations).             (ii)  “Projected Revenues” means, for a Facility, the product of (A) the      Actual kWh delivered by such Facility in the applicable period, multiplied by (B)      the Projected Tolling Rate for such Facility in the applicable period.            (iii) “Sharing Payments” means, for each Indexed PPA, any payments      owed by Buyer to the applicable PPA Customer (including offsets against amounts                                  43  





 






               owed by such PPA Customer to Buyer)  that  are  calculated  on  the basis  of  the              escalation of the Tolling Rate(s).                                    ARTICLE V.                                  WARRANTIES        Section 5.1  Facility Services Warranty.  Without limiting Seller’s obligations under  ARTICLE IV, during the Warranty Period, Seller shall perform, or cause to be performed, all such  Facility Services in respect of the Bloom Systems and the BOF necessary for the Portfolio to  perform in accordance with the Warranty Specifications (the “Facility Services Warranty”).           Section 5.2 Performance Guaranty.                   (a) During the Warranty Period, Seller shall determine within ten (10) Business          Days after the end of each calendar year, whether the Portfolio has delivered to the          applicable Interconnection Points the Minimum kWh for purposes of the Performance          Guaranty during such calendar year (“Performance Guaranty”).                 (b) If such calculation indicates that the Actual kWh delivered by the Portfolio          was greater than the Minimum kWh during such calendar year, then the difference (in          kWh) between Actual kWh less Minimum kWh shall be recorded as a positive balance          in the Performance Guaranty Bank.                 (c) If such calculation indicates that the Actual kWh delivered by the Portfolio          was less than the Minimum kWh during such calendar year, then the difference (in kWh)          between Minimum kWh less Actual kWh shall be recorded as a negative balance in the          Performance Guaranty Bank.                 (d) Seller shall report the balance of the Performance Guaranty Bank to Buyer          within thirty (30) days of the end of each calendar year.  If Seller fails to perform any          Performance Guaranty calculation within the periods required by this Section 5.2, Buyer          may perform its own calculations and may make a claim under Section 5.7.  An example          of a Performance Guaranty calculation is attached as Annex C.         Section 5.3 Efficiency Warranty.  During the Warranty Period, Seller shall determine  for each full calendar month within five (5) Business Days after the end of such month whether  each Facility that has achieved Commencement of Operations has performed at the Minimum  Efficiency Level (the “Efficiency Warranty”).  If the Minimum Efficiency Level has not been met  during such month, then Seller shall so notify Buyer in writing of the basis of its determination  and Buyer may make a claim under Section 5.7.  If Seller fails to perform any Efficiency Warranty  calculation within the periods required by this Section 5.3, Buyer may perform its own calculations  and may make a claim under Section 5.7.          Section 5.4 Performance Warranty.                   (a) During the Warranty Period, Seller shall determine within ten (10) Business          Days after the end of each Calendar Quarter, whether the Portfolio has delivered to the                                         44  





 






                  applicable Interconnection Points the Minimum kWh for purposes of the Performance    Warranty during such Calendar Quarter (“Performance Warranty”).           (b) If such calculation indicates that the Actual kWh delivered by the Portfolio    was greater than the Minimum kWh during such Calendar Quarter, then the difference    (in  kWh)  between  Actual  kWh  less  Minimum  kWh  shall  be  recorded as  a  positive    balance in the Performance Warranty Bank.           (c) If such calculation indicates that the Actual kWh delivered by the Portfolio    was less than the Minimum kWh during such Calendar Quarter, then the difference (in    kWh) between Minimum kWh less Actual kWh shall be recorded as a negative balance    in the Performance Warranty Bank.           (d) Seller shall report the balance of the Performance Warranty Bank to Buyer    within thirty (30) days of the end of each Calendar Quarter.  At any time the Performance    Warranty Bank has a negative balance, Buyer may make a claim under Section 5.7.  If    Seller  fails  to  perform  any  Performance  Warranty  calculation  within  the  periods    required by this Section 5.4, Buyer may perform its own calculations and may make a    claim under Section 5.7.  An example of a Performance Warranty calculation is attached    as Annex C.   Section 5.5 Portfolio Warranty.           (a) Subject to Section 13.5(a), Seller warrants to Buyer that (i) each Bloom    System  upon  Commencement  of  Operations  will  conform  to  the  Bloom  System    Specifications,  (ii)  each  Facility  will  be  free  from  defects  in  design,  materials  and    workmanship until the first anniversary of the Commencement of Operations for such    Facility,  and  (ii)  the  Portfolio  and  each  Facility  will  comply with  the  Warranty    Specifications applicable to the Portfolio or such Facility, as the case may be, during the    Warranty Period (collectively, the “Portfolio Warranty”).             (b) Seller agrees to correct, at Seller’s sole expense, all Bloom Systems or BOF    provided, or BOF Work performed, by it or its subcontractors under this Agreement    which  proves  to  be  defective  in  design,  materials,  or  workmanship  during  the    Manufacturer’s  Warranty  Period  for  each  Facility.   WITHOUT  IN  ANY  WAY    LIMITING (I) SELLER’S OBLIGATION TO INDEMNIFY BUYER PURSUANT TO    (A) SECTION 5.8, (B) SECTION 13.3(A)(II) IN RESPECT OF A BREACH OF A    PPA  OR  SITE  LICENSE  ATTRIBUTABLE  TO  A  DEFECTIVE  FACILITY  AS    STATED  ABOVE  OR  A  BREACH  OF  SECTION  8.1(M),  AND/OR  (C)  WITH    RESPECT TO THIRD PARTY CLAIMS PURSUANT TO SECTION 13.3(A), OR (II)    ANY  OTHER  EXPRESS  REMEDY  SET  FORTH  HEREIN  THAT  MAY  BE    AVAILABLE  IN  CONNECTION  WITH  A  SELLER  FAILURE  TO  TIMELY    CORRECT DEFECTIVE BLOOM SYSTEMS, BOF, OR BOF WORK (INCLUDING,    WITHOUT  LIMITATION,  A  SELLER  OBLIGATION  TO  REMOVE  OR    REPURCHASE  A  DEFECTIVE  BLOOM  SYSTEM),  BUYER’S  SOLE  REMEDY    FOR  A  BREACH  OF  THE  WARRANTY  SET  FORTH  IN  SECTION  5.5(A)(II)    SHALL BE THE CORRECTION OF DEFECTIVE FACILITY AS STATED ABOVE.                                   45  





 






                 (c) The Portfolio Warranty is not transferable to any third person, including any          Person who buys a Facility from Buyer, without Seller’s prior written consent (which          shall not unreasonably be withheld).                 (d) Any period of time in which the Warranty Specifications are not met shall          not extend the Warranty Period.         Section 5.6 Exclusions.  The Portfolio Warranty shall not cover any obligations on the  part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected  by  vandalism  or  other  third-party’s  actions  or  omissions  occurring  after  Commencement  of  Operations (other than to the extent that Seller, Seller Affiliate, the Service Provider or a Seller  subcontractor fails to properly protect the Bloom Systems and was required to do so under the  Transaction Documents); (b) any failure relating to a PPA Customer’s failure to supply natural gas  as  required  under  the  applicable  PPA;  (c)  Buyer’s  (as  opposed  to  Seller,  Seller  Affiliate,  the  Service Provider or a subcontractor thereof) or a PPA Customer’s removal of any safety devices;  (d) any conditions caused by unforeseeable movement in the environment in which the Bloom  Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will  not constitute ‘unforeseeable movement’); (e) accidents, abuse, improper third party testing (unless  caused by Seller, Seller Affiliate, the Service Provider or a subcontractor thereof) or Force Majeure  Events, (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone  other than Seller or Seller’s authorized agents; or (g) a failure of any Battery Solution to perform  in accordance with any warranty(ies) provided by the Battery Solution Manufacturer (excluding  any  such  failure  of  the  Battery  Solution  that  is  attributable  to  a  Bloom  Component  Defect).   SELLER SHALL HAVE NO OBLIGATION UNDER THE PORTFOLIO WARRANTY AND  MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN  OPENED OR MODIFIED BY ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, A  SERVICE  PROVIDER  OR  SUBCONTRACTOR,  OR  ANY  OF  SUCH  PERSON’S  REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER  NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.         Section 5.7 Portfolio Warranty Claims.                 (a) Subject  to  the  provisions  of  Section  13.5(a),  if  Buyer  desires to  make  a          Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the          defect or other basis for the claim in writing.                 (b) If,  after  the  annual  adjustment  to  the  Performance  Guaranty  Bank,  such          Performance Guaranty Bank has a negative balance, then Buyer may make a claim under          the Performance Guaranty.  Upon verification of such claim Seller shall make a payment          to Buyer within ten (10) days of receipt of such claim equal to (i) the absolute value of          the  balance  of  the  Performance  Guaranty  Bank,  multiplied  by  (ii)  the  Performance          Guaranty  Payment  Rate.  Upon  payment  of  such  amount,  the  Performance  Guaranty          Bank shall be reset to zero.  Notwithstanding anything to the contrary set forth in this          Agreement,  Seller’s  cumulative aggregate  liability  for  all  claims  related  to  the          Performance Guaranty shall not exceed the Performance Guaranty Payment Cap.                                            46  





 






                      (c) In the case of a claim relating to the Efficiency Warranty, upon receipt of  such claim and verification by Seller that such Efficiency Warranty is applicable, Seller  or its designated subcontractor will promptly, and in all cases within ninety (90) days,  repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any  portion of the BOF whose repair or replacement is required in order for the applicable  Facility to perform consistent with the Efficiency Warranty.  If Seller is obligated to  repair  or  replace  any  Facility  pursuant  to  this  Section  5.7(c) and  such  repair  or  replacement is not feasible (as determined at Seller’s sole option and discretion) and  Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such  Facility (calculated as of the date of such refund), in which case Seller shall be deemed  to  have  taken  title  to  such  Facility,  and  such  Facility  shall  be  deemed  to  no  longer  constitute  a  portion  of  the  Portfolio.  Seller  shall  make  such  determination  as  to  the  feasibility of repair or replacement as promptly as practicable, but in any event within  ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of  the problem requires a longer period in which to make such determination (in which  case Seller must make a determination within a reasonable time) provided that such  longer period for a determination does not cause any breach of a PPA.  In the event that  Seller has not completed the repair or replacement of any Facility within ninety (90)  days of the date on which Seller received notice of a claim (or within one hundred twenty  (120) days if the specific nature of the problem required a period longer than ninety (90)  days in which to determine the feasibility of repair or replacement), or repurchased the  Facility in the time period in this Section 5.7(c) then Buyer has the right to require Seller  (in which case Seller agrees) to procure return of the Facility in question to Seller (at  Seller’s cost) and Seller will refund to Buyer the Refund Value of such Facility, in which  case Seller shall be deemed to have taken title to such Facility upon payment of the  Refund Value, and such Facility shall be deemed to no longer constitute a portion of the  Portfolio and shall be removed as described in the previous sentence.  The rights and  obligations of the Parties under this this Section 5.7(c) are in addition to and separate  from any other rights of Buyer under this ARTICLE V.         (d) In the event of a claim relating to the Performance Warranty, upon receipt  of such notice and verification by Seller that such Performance Warranty is applicable,  Seller or its designated subcontractor will promptly, and in all cases prior to the final  day of the immediately following Calendar Quarter, repair or replace, at Seller’s sole  option and discretion, a sufficient number of Underperforming Facilities in order for the  Portfolio  to  perform  consistent  with  the  Performance  Warranty  at  the  end  of  such  Calendar Quarter.  If Seller is obligated to repair or replace any Facilities pursuant to  this  Section  5.7(d)  and  such  repair  or  replacement  is  not  feasible  (as  determined  at  Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will  refund  to  Buyer  the  Refund  Value  of  such  number  of  Underperforming  Facilities  (calculated as of the date of such refund) as will cause the remaining Portfolio to comply  with  the  Performance  Warranty  calculated  through  the  final  day of  the  applicable  Calendar  Quarter,  in  which  case  Seller  shall  be  deemed  to  have taken  title  to  such  Underperforming Facilities, and such Underperforming Facilities shall be deemed to no  longer constitute a portion of the Portfolio.  Seller shall make such determination as to  the  feasibility  of  repair  or  replacement  as  promptly  as  practicable,  but  in  any  event  within ninety (90) days after Seller’s receipt of notice of the claim unless the specific                                 47  





 






                nature of the problem requires a longer period in which to make such determination (in  which case Seller must make a determination within a reasonable time) provided that  such longer period for a determination does not cause any breach of a PPA.  In the event  that Seller has not completed the repair or replacement of such sufficient number of  Underperforming Facilities within ninety (90) days of the date on which Seller received  notice of a claim, or repurchased such sufficient number of Underperforming Facilities  in the time period in this Section 5.7(d), then Buyer has the right to require Seller (in  which  case  Seller  agrees)  to  procure  return  of  such  number  of  Underperforming  Facilities (calculated as of the date of such refund) as will cause the remaining Portfolio  to  comply  with  the  Performance  Warranty  calculated  through  the final  day  of  the  applicable Calendar Quarter) and Seller will refund to Buyer the Refund Value of such  Underperforming Facilities, in which case Seller shall be deemed to have taken title to  such Underperforming Facilities upon payment of the Refund Value, and such Facilities  shall be deemed to no longer constitute a portion of the Portfolio and shall be removed  as described in the previous sentence. In the event that Seller is obligated to repurchase  any  Underperforming  Facilities  pursuant  to  this  Section  5.7(d) in  connection  with  a  Performance Warranty claim, the first Underperforming Facility repurchased shall be  the  Facility  with  the  lowest  output  as  a  factor  of  its  System  Capacity  in  the  prior  Calendar  Quarter,  followed  by  the  next  lowest,  and  so  on  until Seller’s  repurchase  obligations are satisfied.         (e) Buyer  is  hereby  notified  that refurbished  parts  may  be  used  in repair  or  replacement activities, provided that (i) any such refurbished parts will have passed the  same inspections and tests performed by Seller on its new parts of the same type before  such refurbished parts are used in any repair or replacement, and (ii) Seller shall within  thirty (30) days of a written request therefor by Buyer, provide a report for any or all  Bloom Systems purchased hereunder that lists all components that have been replaced  in any individual Bloom System.  If it is determined that a Facility will be removed  pursuant to Section 5.7(c) or Section 5.7(d), Seller shall at its sole cost and expense  remove the Facility and all ancillary equipment (including the concrete pad and any  other improvements to the applicable Site to the extent required under the applicable  PPA or Site License) from the applicable Site, restoring the Site to its condition before  the installation, including closing all utility connections and properly sealing any Site  penetrations in the manner required by all Legal Requirements and the applicable PPA  or Site License.         (f) WITHOUT IN ANY WAY LIMITING (I) SELLER’S OBLIGATION TO  INDEMNIFY BUYER PURSUANT TO SECTION 13.3(A)(II) IN RESPECT OF A  BREACH  OF  SECTION  8.1(M),  EXCEPT  AS  EXPLICITLY  SET  FORTH  IN  SECTION 5.8, THE REMEDIES SET FORTH IN THIS SECTION 5.7 ARE BUYER’S  SOLE  AND  EXCLUSIVE  REMEDY,  AND    SELLER’S  SOLE  AND  EXCLUSIVE  LIABILITY,  ARISING  OUT  OF  A  FAILURE  OF  ANY  FACILITY  OR  THE  PORTFOLIO,  AS  APPLICABLE,  TO  PERFORM  IN  ACCORDANCE  WITH  THE  WARRANTY SPECIFICATIONS.                                    48  





 






                Section 5.8 Indemnification Regarding Performance Under PPAs.             (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to    Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA    Customer with respect to any performance guarantee, any power performance shortfall,    any efficiency warranty or any cost excess, including payments made or to be made by    Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the    benefits received by such PPA Customer under the applicable state incentive programs    for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer    harmless for any such liability, costs and expenses incurred by Buyer pursuant to such    PPA Warranties (“PPA Warranty Reimbursement Payment”) except to the extent such    liability results from a failure (not attributable to a Bloom Component Defect) of the    Battery  Solution  to  perform  in accordance  with  any  warranty(ies)  provided  by  the    Battery  Solution  Manufacturer.   Without  in  any  way  limiting  and  in  addition to  the    foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA    Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may    return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the    Refund Value of such Bloom Systems, in which case Seller shall be deemed to have    taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer    constitute  a  portion  of  the  Portfolio,  and  (ii)  Seller  shall  indemnify  and  hold  Buyer    harmless for any amount Buyer is liable to a PPA Customer in connection with such    termination.  If it is determined that a Bloom System will be removed pursuant to this    Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and    any other ancillary equipment (including the concrete pad and any other improvements    to the applicable Site to the extent required under the applicable PPA or Site License)    from  the  applicable  Site,  restoring  the  Site  to  its  condition  before  the  installation,    including closing all utility connections and properly sealing any Site penetrations in the    manner required by all Legal Requirements and the applicable PPA or Site License.  For    the avoidance of doubt, claims, credits, reimbursements and any other payments made    under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(b) with respect    to claims relating to the Performance Guaranty and shall not count against such cap.            (b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a)    shall  be  calculated  by  Seller  on  the  first  Business  Day  following  the  end  of  each    Calendar Quarter and paid no later than the fifth Business Day of the Calendar Quarter    immediately following the Calendar Quarter with respect to which such PPA Warranty    Reimbursement Payment arose.             (c) Notwithstanding anything to the contrary set forth herein, Seller shall have    no liability to Buyer under this Section 5.8 to the extent that Seller’s liability under any    PPA Warranty is increased due to such PPA Warranty having been modified, amended,    or otherwise changed in any way from the terms of such PPA Warranty as set forth in    the applicable PPA as of the Original PUMA Agreement Date (or, for PPAs added after    the Original PUMA Agreement Date, as set forth in the applicable PPA as of such date)    unless Seller has consented in writing to such modification, amendment, or change.                                    49  





 






           Section 5.9 Disclaimers.   EXCEPT  FOR  THE  REPRESENTATIONS  AND   WARRANTIES  SET  FORTH  IN  ARTICLE VIII,  THIS  ARTICLE V  AND  THE  OTHER   TRANSACTION DOCUMENTS, THE FACILITIES ARE TRANSFERRED “AS IS, WHERE   IS”,  AND  SELLER  EXPRESSLY  DISCLAIMS  ANY  REPRESENTATIONS  OR   WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES,   OPERATIONS OF THE FACILITIES, VALUE OR QUALITY OF THE FACILITIES OR THE   PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE   FACILITIES.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH   IN  ARTICLE VIII,  THIS  ARTICLE V AND  THE  OTHER  TRANSACTION  DOCUMENTS,   SELLER  SPECIFICALLY  DISCLAIMS  ANY  REPRESENTATION  OR  WARRANTY  OF   MERCHANTABILITY,  USAGE,  SUITABILITY  OR  FITNESS  FOR  ANY  PARTICULAR  PURPOSE WITH RESPECT TO THE FACILITIES, OR ANY PART THEREOF.  NO PERSON   IS  AUTHORIZED  TO  MAKE  ANY  OTHER  WARRANTY  OR  REPRESENTATION   CONCERNING THE PERFORMANCE OF THE FACILITIES.          Section 5.10 Title.   Title  to  all  replacement  items,  parts,  materials  and  equipment   supplied under or pursuant to this Agreement to Buyer shall transfer to Buyer upon installation or  inclusion  in  a  Facility.   Upon  replacement  of  an  item  or  part  as  part  of  the  Facility  Services  provided hereunder, Seller shall be obligated to remove such item or part and shall have the right  to dispose of such replaced property in any manner that it chooses in its sole discretion.                                    ARTICLE VI.                               RECORDS AND AUDITS         Section 6.1  Record-Keeping Documentation; Audit Rights.                  (a) Seller  shall  ensure  that  records  concerning  Seller’s  EPC  Services  and           Facility Services activities hereunder are properly created and maintained at all times in           accordance  with  all  Legal  Requirements,  including  FERC  requirements  regarding           record  retention  for  Holding  Companies  in  18  C.F.R.  Part  368  and  any  successor           regulations to the extent applicable to Seller.  Such records shall include, but not be           limited to, the following:                      (i)   records and documentation in respect of each Facility’s satisfaction              of each Milestone, including records and documentation regarding the shipment of              Bloom  Systems  and  BOF,  the  completion  of  BOF  Work,  the  achievement  of              Commencement of Operations, and the fact and date(s) such Facility has achieved              each of the four separate criteria set forth the definition of “Placed in Service”;                     (ii)  a separate “Maintenance Specification Log” for each Facility in a               paper or electronic format (with entries made for each inspection, including any               discrepancies found during such inspection), a copy of which shall be submitted, in               paper  or  electronic  format,  to  Buyer  along  with  the  corresponding  Quarterly               Reports;                      (iii) a Site service report completed in respect of each inspection, repair,               replacement, service or other activity or observation made by or on behalf of Seller                                          50  





 






                    in  connection  with  its  responsibilities  hereunder,  detailing  the  nature  of  the      problems with a Facility detected, if any, and the specifics of the problem resolution      and  submitted  to  Buyer  within  ten  (10)  Business  Days  of  the  date  when  such      problem is resolved or within ten (10) Business Days of a routine inspection or      service that did not identify any issues;              (iv)  a monthly report submitted to Buyer within fifteen (15) days after     the  end  of  each  month  (“Monthly  Report”)  detailing  and  documenting,  on  a      monthly  basis,  the  (A)  Efficiency  and  total  output  (in  kWh)  of each  Facility      comprising the Portfolio, and (B) total output (in kWh) of the Portfolio, in each      case for the preceding month;             (v)   records  and  documentation  in  respect  of  each  Facility  or  the      Portfolio, as applicable, regarding the compliance of such Facility or the Portfolio,      as applicable, with the Warranty Specifications and any applicable PPA Warranties      during the Warranty Period;              (vi)  any  other  records,  reports,  or  other  documentation  related  to  the      production  and  sale  of  energy  from  the  Facilities  or  that  Buyer  is  required  to      maintain in respect of any Facility under any applicable PPA;              (vii) until the Commencement of Operations Date of the final Facility to      achieve such milestone, a “Construction Report” delivered in connection with the      Payment  Notice  corresponding  to  each  invoice  delivered  pursuant  to  Section      2.3(a)(iii),  specifying  (A)  the  forecasted  commencement  of  construction  date,      shipment date and Commencement of Operations Date of each Facility projected     to be included in the Portfolio, (B) the actual commencement of construction date,     shipment date and Commencement of Operations Date of each Facility included in     the  Portfolio  as  of  the  date  of  such  Construction  Report,  and  (C) a summary     narrative  regarding  the  source  of  any  delays  in  the  achievement  of  any  of  the     foregoing milestones as compared to the dates forecasted in the immediately prior     Construction Report; and             (viii) any  other  records,  reports,  or  other  documentation  reasonably     requested  by  Buyer,  including  as  necessary  to  support  any  ITC  eligibility     determination  with  respect  to  a  Facility.   Seller  agrees  to  use  commercially     reasonable  efforts  to  promptly  provide  such  documentation  to  Buyer,  and  shall     provide a reasonable explanation for any inability to provide such documentation.         (b) All such records required to be created and maintained pursuant to Section  6.1(a)  shall  (i)  be  kept  available  at  Seller’s  office  and  made available  for  Buyer’s  inspection  upon  request  at  all  reasonable  times,  and  (ii)  be  retained for the relevant  retention period provided in 18 C.F.R. § 368.3 or any successor regulation as amended  from time, to the extent applicable to Seller, or any longer period required under any  PPA.  Any documentation prepared by Seller during the Term for the purposes of this  Agreement  shall  be  directly  prepared  for  Buyer’s  benefit  and  immediately  become  Buyer’s property.  Any such documentation shall be stored by Seller on behalf of Buyer                                 51  





 






           until its final delivery to Buyer.  Seller may retain a copy of all records related to each          Facility for future analysis.                 (c) Buyer shall have the right no more than once during any calendar year and          going back no more than two (2) calendar years preceding the calendar year in which an          audit takes place, upon reasonable prior written notice, including using an independent          public accounting firm reasonably acceptable to Seller, to examine such records during          regular business hours in the location(s) where such records are maintained by Seller for          the purposes of verifying Buyer’s compliance with its obligations hereunder, including          the  accuracy  of  Monthly  Reports  and  Seller’s  calculations  in  respect  of  Warranty          Specifications and applicable PPA Warranties; provided, however, that such records          may be audited only once under this Section 6.1(c).  Buyer shall pay the cost of the audit          unless the results of the audit reveal that the Minimum kWh or Actual kWh reported by          Buyer in respect of the Portfolio or any Facility during any calendar year that is audited          exceeds by five percent (5%) or more the true Minimum kWh or Actual kWh, as the          case may be, in which case Seller shall pay the audit costs.         Section 6.2 Reports; Invoicing Information; Other Information.  Without in any way  limiting Seller’s other reporting, notification, and other similar obligations under this Agreement,  during the Warranty Period, Seller shall furnish to Buyer the following reports, notices, and other  information regarding the Bloom Systems (which may be effected by e-mail communication to the  Buyer Manager or other appropriate Buyer representative):                 (a) Promptly  upon  Seller’s  knowledge  of  any  event  or  circumstance  which          could materially delay or prevent its performance of any of Seller’s obligations under          any PPA, notice of such event or circumstance in reasonable detail;                 (b) Promptly upon Seller’s knowledge of the occurrence of any damage to any          Facility or Site, notice of such damage in reasonable detail;                 (c) Promptly  (and  in  any  case  within  three  (3)  Business  Days)  following          Seller’s final determination of the applicability thereof, notice that the operation of a          Facility has experienced any of the circumstances described in clauses (i) through (iv)          of the definition of “Minimum kWh” herein;                 (d) Promptly upon Seller’s knowledge, notice that any Facility was or is not in          compliance with any PPA Warranty during any period;                  (e) Any  information  Buyer  may  reasonably  request  in  connection  with  any          claim filed by Buyer under any insurance maintained with respect to the Facilities, and          any information such insurance providers may reasonably request in connection with          such claim; and                 (f) Seller  shall,  upon  Buyer’s  reasonable  request,  make  available  to  Buyer          appropriate members of Seller’s senior technical personnel to discuss any performance          issues relating to (i) any Facility that experienced a reduction in average output in any          calendar month as compared to the immediately preceding calendar month exceeding          five percent (5%), or (ii) any component of the Battery Solution.                                         52  





 






                                   ARTICLE VII.                                  DATA ACCESS        Section 7.1  Access to Data and Meters.  Throughout the Term, and thereafter to the  extent relevant to calculations necessary for periods prior to the end of the Term and subject to any  confidentiality obligation owed to any third party, any limitations under Legal Requirements as  determined  by  Buyer  in  its  reasonable  discretion,  and/or  any  restrictions  on  the  disclosure  of  information which may be subject to intellectual property rights restricting disclosure, at the sole  cost of Seller:                 (a) Buyer  shall  grant  Seller  access  to  all  data  relating  to  the  electricity          production  of  each  Facility,  it  being  understood  that  it  is  Seller’s  responsibility  to          determine the performance of the Facility, and any other calculations as required under          this  Agreement,  and  that  it  is  Buyer’s  responsibility  to  handle  all  accounting  and          invoicing activities;                  (b) Buyer shall allow Seller access to all data from all Facility Meters; and                 (c) Seller shall be entitled to use the foregoing data for its internal business          purposes and make such data available to third parties for analysis, in all cases unless          and to the extent such uses of or disclosures by Seller are restricted under the applicable          PPA or Legal Requirements, including those related to privacy.                                   ARTICLE VIII.                 REPRESENTATIONS AND WARRANTIES OF SELLER         Section 8.1 Representations and Warranties of Seller.  Seller represents and warrants  to Buyer as of the Original PUMA Agreement Date and as of each Purchase Date as follows:                 (a) Incorporation;  Qualification.   Seller  is  a  corporation  duly  incorporated,          validly existing and in good standing under the laws of the State of Delaware and has          all requisite corporate power and authority to own, lease, and operate its business as          currently conducted.  Seller is duly qualified to do business as a foreign corporation and          is in good standing under the laws of each jurisdiction that its business, as currently          being conducted, shall require it to be so qualified, except where the failure to be so          qualified would not have a material adverse effect on the Bloom Systems being sold          under this Agreement.                 (b) Authority.  Seller has full corporate power and authority to execute and          deliver  the  Transaction  Documents  to  which  it  is  a  party  and  to  consummate  the          transactions contemplated hereby and thereby.  The execution and delivery by Seller of          the Transaction Documents to which it is a party and the consummation by Seller of the          transactions contemplated hereby and thereby have been duly and validly authorized by          all  necessary  corporate  action  required  on  the  part  of  Seller  and  the  Transaction          Documents to which Seller is a party have been duly and validly executed and delivered          by Seller.  Each of the Transaction Documents to which Seller is a party constitutes the          legal, valid and binding agreement of Seller, enforceable against Seller in accordance          with  its  terms,  except  as  enforcement  may  be  limited  by  applicable  bankruptcy,                                         53  





 






                insolvency,  reorganization,  moratorium  or  similar  laws  affecting  creditors’  rights  generally and by general principles of equity (regardless of whether considered in a  proceeding in equity or at law).         (c) Consents and Approvals; No Violation.  Neither the execution, delivery and  performance  of  the  Transaction  Documents  to  which  Seller  is  a  party  nor  the  consummation by Seller of the transactions contemplated hereby and thereby will (i)  conflict with or result in any breach of any provision of the certificate of incorporation  or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both,  conflict with, result in any violation or breach of, constitute a default under, result in  any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any  right of termination under the conditions or provisions of any note, bond, mortgage,  indenture, material agreement or other instrument or obligation to which Seller is a party  or by which it, or any material part of its assets may be bound, in each case that would  individually or in the aggregate result in a material adverse effect on Seller or its ability  to perform its obligations hereunder or (iii) constitute violations of any law, regulation,  order, judgment or decree applicable to Seller, which violations, individually or in the  aggregate, would result in a material adverse effect on Seller or its ability to perform its  obligations hereunder.         (d) Legal  Proceedings.   There  are  no  pending  or,  to  Seller’s  Knowledge,  threatened claims, disputes, governmental investigations, suits, actions (including non- judicial real or personal property foreclosure actions), arbitrations, legal, administrative  or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in  equity,  by  or  against  Seller  that  challenge  the  enforceability of  the  Transaction  Documents  to  which  Seller  is  a  party  or  the  ability  of  Seller  to  consummate  the  transactions  contemplated  hereby  or  thereby,  in  each  case,  that  could  reasonably  be  expected  to  result  in  a  material  adverse  effect  on  Seller  or  its  ability  to  perform  its  obligations hereunder.         (e) U.S. Person.   Seller  is  not  a  “foreign  person”  within  the  meaning  of  Section 1445(b)(2) of the Code and has provided a Certificate of Non-Foreign Status in  the  form  and  substance  required  by  Section  1445  of  the  Code  and the regulations  thereunder.         (f) Purchase Price of Facility. The Purchase Price paid for each Facility is an  amount that is equal to the Fair Market Value of each Facility, as determined on an arms- length basis.         (g) Title; Liens. As of each date title is required to pass to Buyer hereunder with  respect  to  any  assets  comprising  a  Facility,  Seller  has  and  will  convey  good  and  marketable title to such assets to be sold to Buyer on such date and all such assets are  free and clear of all Liens other than Permitted Liens.  Neither Seller nor any of its  subcontractors have placed any Liens on the Sites or the Facilities other than Permitted  Liens. To the extent that Seller has actual knowledge that any of its subcontractors has  placed any Lien on a Facility or Site, then Seller shall cause such Liens to be discharged,  or shall provide a bond in an amount and from a surety acceptable to Buyer to protect                                 54  





 






                against  such  Lien,  in  each  case,  within  thirty  (30)  days  after Seller  is  aware  of  the  existence thereof.  Seller shall indemnify Buyer against any such lien claim, provided  that if the applicable Site License requires additional or more stringent action, Seller  shall also indemnify Buyer for the costs and expenses of such actions.         (h) Intellectual  Property.  To  Seller’s  Knowledge,  no  Bloom  System  and  no  other product or service marketed or sold (or proposed to be marketed or sold) by Seller  hereunder violates or will violate any license or infringes or will infringe any intellectual  property rights of any other Person; provided, however, that, except with respect to parts  and  components  supplied  by  Seller  or  any  of  its  Affiliates  to  the  Battery  Solution  Manufacturer  that  are  used  to  manufacture  any  Battery  Solution,  Seller  makes  no  representations or warranties under this Section 8.1(h) regarding the Battery Solution.   Seller has received no written communications alleging that such Seller has violated, or  by conducting its business, would violate any of the patents, trademarks, service marks,  tradenames,  copyrights,  trade  secrets,  mask  works  or  other  proprietary  rights  or  processes of any other Person.         (i) Consents  and  Approvals.  Seller  has  received  all  material  third party  consents which are required as of such date for the consummation and performance of  the transactions contemplated hereunder.         (j) Real  Property.  The  real  property  referred  to  in  each  PPA  and  each  Site  License  is  all  the  real  property  that  is  necessary  for  the  construction,  installation,  operation and maintenance of the Facilities other than those real property interests that  can be reasonably expected to be available on commercially reasonable terms as and to  the extent required.  Each Site has been licensed to Buyer pursuant to the terms of the  applicable Site License.  For clarity, no Site has been leased to Buyer.         (k) Tax Representations.             (i)   Each  Facility  is  a  fuel  cell  power  plant  that  has  a  Nameplate      Capacity of at least 0.5 kilowatts of electricity using an electrochemical process and      has an electricity-only generation efficiency greater than 30 percent.  Each Facility      will  function  independently  of  each  other  Facility  in  the  Portfolio  to  generate      electricity for transmission and sale to a PPA Customer and is an integrated system      comprised of a fuel cell stack assembly and associated balance of plant components      that  has  all  the  necessary  components  to  convert  a  fuel  into  electricity  using      electrochemical means.             (ii)  As of Purchase Date for each Facility, no federal, state, or local Tax      credit (including the ITC) has been claimed with respect to any property that is part      of such Facility.               (iii) No  application  has  been  submitted  for  a  grant  provided  under      Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as      amended  by  the  Tax  Relief,  Unemployment  Insurance  Reauthorization  and  Job      Creation Act of 2010, with respect to any property that is part of any Facility.                                 55  





 






                          (iv)  No  private  letter  ruling  has  been  obtained  for  the  transactions      contemplated hereunder from the IRS.             (v)   As  of  the  Purchase  Date  of  each  Facility,  such  Facility  was  not      originally Placed in Service and, specifically, clauses (3) and (4) of the definition      of the term “Placed in Service” have not been met with respect to such Facility.             (vi)  No  Facility  is  comprised  of  any  property  that  (A) is  “used      predominately outside of the United States” within the meaning of Code Section     168(g), (B) is imported property of the kind described in Code Section 168(g)(6),     (C) is “tax-exempt use property” within the meaning of Code Section 168(h), or     (D) is property described in Code Section 50(b).            (vii) Other  than  de  minimis  property,  material  or  parts,  each  Facility     consists of property, materials or parts not used by any Person prior to having been     first placed in a state of readiness and availability for their specific design function     as part of the Facility.            (viii) No portion of the basis of the Facility is attributable to “qualified     rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.            (ix)  No grants (for purposes of this paragraph, “grants” shall not include     any  credits,  benefits,  emissions  reductions,  offsets  or  allowances,  howsoever     entitled, attributable to the generation from the Facilities, and its respective avoided     emission of pollutants) have been provided by the United States, a state, a political     subdivision of a state, or any other Governmental Authority for use in constructing     or financing any Facility or with respect to which Seller is the beneficiary.  No     proceeds of any issue of state or local government obligations have been used to     provide financing for any Facility the interest on which is exempt from tax under     Code Section 103.  No subsidized energy financing (within the meaning of Code     Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or     local program provided in connection with any Facility.            (x)   Seller is not related to any PPA Customer within the meaning of     Code Section 267 or Code Section 707.         (l) Bankruptcy. No event of Bankruptcy has occurred with respect to Seller.         (m) Bloom System Performance.  Assuming that Seller maintains each of the  Facilities consistent with the Preventative Maintenance Schedule, Seller is not aware of  any circumstances which could reasonably be expected to prevent the Portfolio from  performing in accordance with the Warranty Specifications and the PPA Warranties for  the Warranty Period.         (n) Material Adverse Effect.                                    56  





 






                          (i)   As of the Original PUMA Agreement Date, no Material Adverse      Effect has occurred with respect to Seller or, to the Knowledge of Seller, any PPA     Customer.             (ii)  As of each Purchase Date, no Material Adverse Effect has occurred     between the Original PUMA Agreement Date and the applicable Purchase Date (A)     with  respect  to  Seller  or,  (B)  to  the  Knowledge  of  Seller,  with  respect  to  the     applicable PPA Customer(s) relating to any of the Facilities purchased and sold on     such date.           (o) Governmental  Approvals.   Seller,  as  applicable  on  behalf  of  Buyer,  has  obtained  all  Governmental  Approvals  required  as  of  Delivery  Date  to  construct  any  Facility in compliance with Applicable Law.  Seller will assist Buyer in applying for a  grant of market-based rate authority from FERC sufficient to operate each Facility with  an effective date prior to any Facility being Placed in Service.  As of each of the dates  each Facility is Placed in Service and achieves Commencement of Operations, Seller,  as applicable on behalf of Buyer, has obtained all Governmental Approvals required for  such operation of such Facility and each of the Governmental Approvals obtained as of  such date is validly issued, final and in full force and effect and is not subject to any  current legal proceeding or to any unsatisfied condition.  On each of such dates, Seller,  as  applicable  on  behalf  of  Buyer,  is  in  compliance  in  all  material  respects  with  all  applicable  Governmental  Approvals  and  has  not  received  any  notice  from  a  Governmental Authority of an actual or potential violation of any such Governmental  Approval.         (p) Compliance.   Seller  has  performed  in  all  respects  all  obligations,  and  complied in all material respects with the agreements and covenants, required to be  performed by or complied with by Seller hereunder; provided that, for clarity, Seller has  complied,  and  will  comply,  in  all  respects  with  the  obligations set forth in Section  7.1(h)(i) of the Equinix PPA in its capacity as “Bloom” thereunder and as if Seller were  a “Party” thereto.          (q) No Breaches.  As of the Original PUMA Agreement Date, each PPA is a  legal, valid, binding and enforceable obligation of Buyer and, to Seller’s Knowledge, of  each  other  party  thereto,  and  each  PPA  is  in  full  force  and  effect.   To  Seller’s  Knowledge, neither Buyer nor any other Person party thereto is in material breach or  violation of any PPA, and no event has occurred, is pending or is threatened, which,  after the giving of notice, with lapse of time, or otherwise, would constitute any such  breach or default by Buyer or any other party thereto.           (r) Insurance.  Seller has obtained the insurance described in Annex B with  respect to each Facility in the Portfolio and with respect to each other Facility not yet in  the Portfolio for which Buyer has paid any portion of the applicable Purchase Price, all  such policies remain in full force and effect, and all insurance premiums that are due  and payable have been paid in full with no premium overdue.                                  57  





 






                 (s) Data Privacy.  Seller has used all data that Seller has collected regarding a          PPA  Customer’s  electricity  consumption  at  such  Site  consistent with  and  subject  to          Applicable Law with respect to privacy.                                   ARTICLE IX.                 REPRESENTATIONS AND WARRANTIES OF BUYER         Section 9.1 Representations and Warranties of Buyer.  Buyer represents and warrants  to Seller as of the Original PUMA Agreement Date and as of each Purchase Date, as follows.                 (a) Organization.  Buyer is a limited liability company duly formed, validly          existing  and  in  good  standing  under  the  laws  of  the  State  of  Delaware  and  has  all          requisite limited liability company power and authority to own, lease, and operate its          business as currently conducted.                 (b) Authority.  Buyer has full limited liability company power and authority to          execute and deliver the Transaction Documents to which it is a party and to consummate          the transactions contemplated hereby and thereby.  The execution and delivery by Buyer          of the Transaction Documents to which it is a party and the consummation by Buyer of          the transactions contemplated hereby and thereby have been duly and validly authorized          by  all  necessary  corporate  action required  on the  part  of  Buyer  and  the  Transaction          Documents to which Buyer is a party have been duly and validly executed and delivered          by Buyer.  Each of the Transaction Documents to which Buyer is a party constitutes the          legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance          with  its  terms,  except  as  enforcement  may  be  limited  by  applicable  bankruptcy,          insolvency,  reorganization,  moratorium  or  similar  laws  affecting  creditors’  rights          generally and by general principles of equity (regardless of whether considered in a          proceeding in equity or at law).                 (c) Consents and Approvals; No Violation.  Neither the execution, delivery and          performance  of  the  Transaction  Documents  to  which  Buyer  is  a  party  nor  the          consummation by Buyer of the transactions contemplated hereby and thereby will (i)          conflict with or result in any breach of any provision of the articles of formation of          Buyer nor Buyer’s limited liability company agreement, (ii) with or without the giving          of notice or lapse of time or both, conflict with, result in any violation or breach of,          constitute a default under, result in any right to accelerate, result in the creation of any          Lien  on  Buyer’s  assets,  or  create  any  right  of  termination  under  the  conditions  or          provisions  of  any  note,  bond,  mortgage,  indenture,  material  agreement  or  other          instrument or obligation to which Buyer is a party or by which it, or any material part          of its assets may be bound, in each case that would individually or in the aggregate result          in a material adverse effect on Buyer or its ability to perform its obligations hereunder          or (iii) constitute violations of any law, regulation, order, judgment or decree applicable          to Buyer, which violations, individually or in the aggregate, would result in a material          adverse effect on Buyer or its ability to perform its obligations hereunder.                 (d) Legal  Proceedings.   There  are no  pending  or,  to  Buyer’s  Knowledge,          threatened claims, disputes, governmental investigations, suits, actions (including non-                                        58  





 






           judicial real or personal property foreclosure actions), arbitrations, legal, administrative          or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in          equity,  by  or  against  Buyer  that  challenge  the  enforceability  of  the  Transaction          Documents  to  which  Buyer  is  a  party  or  the  ability  of  Buyer  to consummate  the          transactions  contemplated  hereby  or  thereby,  in  each  case,  that  could  reasonably  be          expected to result  in  a material  adverse  effect on  Buyer  or  its  ability  to  perform  its          obligations hereunder.                 (e) Consents  and  Approvals.  Buyer  has  received  all  material  third  party          consents which are required as of such date for the consummation and performance of          the transactions contemplated hereunder.                 (f) Bankruptcy. No event of Bankruptcy has occurred with respect to Buyer.                 (g) No Other Representations.  Buyer is not relying on any representations or          warranties whatsoever, express, implied, at common law, statutory or otherwise, except          for the representations or warranties expressly set out in the Transaction Documents and          the Assignment Agreements.                                    ARTICLE X.                                CONFIDENTIALITY         Section 10.1 Confidential Information.  Subject to the other terms of this ARTICLE X  each  Party  shall,  and  shall  cause  its  Affiliates  and  its  respective  stockholders,  members,  subsidiaries  and  Representatives  to,  hold  confidential  the  terms  of  this  Agreement  and  all  information it has obtained or obtains from the other Party in connection with this Agreement  concerning Seller and Buyer and their respective assets, business, operations or prospects (the  “Confidential  Information”),  including  all  materials  and  information  furnished  by  Seller  in  performance of this Agreement, regardless of form conveyed or whether financial or technical in  nature,  including  any  trade  secrets  and  proprietary  know  how  and  Software  whether  such  information bears a marking indicating that they are proprietary or confidential or not; provided,  however, that Confidential Information shall not include (a) the fact that the Parties have entered  into this Agreement, (b) the nature of the transactions contemplated by this Agreement or (c) the  Buyer’s capital expenditures or financing plans related to the transactions contemplated by this  Agreement, or (d) information that (i) is or becomes generally available to the public other than as  a result of any fault, act or omission by a Party or any of its Representatives, (ii) is or becomes  available to a Party or any of its Representatives on a non-confidential basis from a source other  than the other Party or its Representatives, provided that such source was not and is not bound by  any contractual, legal or fiduciary obligation of confidentiality with respect to such information or  (iii) was or is independently developed or conceived by a Party or its Representatives without use  of or reliance upon the Confidential Information of the other Party, as evidenced by sufficient  written record.         Section 10.2 Restricted Access.                 (a) Buyer agrees that the Bloom Systems themselves contain Seller’s valuable          trade secrets.  Buyer agrees (i) to restrict the use of such information to matters relating                                         59  





 






                to the Facilities, and such other purposes, if any, expressly provided herein, and (ii) to  restrict access to such information as provided in Section 10.3(b).         (b) Seller’s Confidential Information will not be reproduced without Seller’s  prior written consent, and following termination of this Agreement all copies of such  written information will be returned to Seller upon written request (not to be made while  materials are still of use to the operation of a Facility and no Buyer Default has occurred  and  is  continuing)  or  shall  be  certified  by  Buyer  as  having  been  destroyed,  unless  otherwise  agreed  by  the  Parties.   Buyer’s  Confidential  Information  will  not  be  reproduced by Seller without Buyer’s prior written consent, and following termination  of this Agreement all copies of such written information will be returned to Buyer upon  written request or shall be certified by Seller as having been destroyed.  Notwithstanding  the foregoing, each Party and its Representatives may each retain archival copies of any  Confidential  Information  to  the  extent  required  by  law,  regulation  or  professional  standards  or  copies  of  Confidential  Information  created  pursuant  to  the  automatic  backing-up of electronic files where the delivery or destruction of such files would cause  undue hardship to the receiving Party, so long as any such archival or electronic file  back-up  copies  are  accessible  only  to  legal  or  information  technology  personnel,  provided that such Confidential Information will continue to be subject to the terms of  this Agreement.         (c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Facilities  are offered for sale and are sold by Seller subject to the condition that such sale does not  convey  any  license,  expressly  or  by  implication,  to  manufacture,  reverse  engineer,  duplicate or otherwise copy or reproduce any part of the Facilities, documentation or  Software without Seller’s express advance written permission.  Subject to ARTICLE XI  hereof, Buyer agrees not to remove the covering of any Bloom System, not to access the  interior or to reverse engineer, or cause or knowingly allow any third party to open,  access  the  interior  or  reverse  engineer  any  Facility  or  Software  provided  by  Seller.   Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement,  only Seller or its authorized representatives may open or access the interior of a Facility.   Notwithstanding  the  foregoing  or  anything  else  herein  to  the  contrary,  and  without  limitation of the rights set forth in ARTICLE XI hereof, if any Facility is no longer  covered  by  this  Agreement  or  another  agreement  between  Buyer  and  Seller  (or  any  Affiliate of Seller) regarding the operation and maintenance of such Facility as a result  of the termination of this Agreement with respect to such Facility (A) in connection with  a  Seller  Default  or  (B)  in  connection  with  the  expiration  of  the  Extended  Warranty  Period,  Buyer  shall  be  entitled  to maintain,  or  cause  a  third  party  to maintain,  such  Facility, including replacing Components as needed or desired; provided that:             (i)   No less than thirty (30) calendar days prior to the event of such      termination  pursuant  to  subsection  (B)  above,  to  the  extent  Buyer  requires  any      maintenance  services  for  such  Facility  following  such  termination,  Buyer  shall      notify Seller of such requirements in writing.  If Seller desires to perform such      maintenance services, Seller shall provide within five (5) Business Days to Buyer      the  material  terms  and  conditions  (including,  without  limitation,  the  scope  of      services  offered,  the  price(s)  quoted  for  such  services,  and  the  terms  of  any                                 60  





 






                       performance warranties to be provided in connection with such services) pursuant         to which it is willing to provide such maintenance services for such Facility, which         shall be no less favorable to Buyer than Seller’s standard rates, terms and warranties         as of such date.  If Buyer declines to engage Seller to perform such services, or the         Parties are unable to execute appropriate documentation to reflect such services,         Buyer may (subject to clause (ii), below) seek to engage a third party to perform         such services, provided that, prior to engaging any such third party to maintain a        Facility,  Buyer  shall  provide  written  notice  to  Seller  of  the  material  terms  and        conditions on which such third party has offered to provide such service (including,        without limitation, (X) the scope of services offered, (Y) the price(s) quoted for        such services, and (Z) the terms of any performance warranties to be provided in        connection with such services). Seller shall have ten (10) Business Days to notify        Buyer if Seller will agree to perform the applicable services for a price not to exceed        the quoted amount and otherwise on terms no less favorable to Buyer than those        included in the notice required hereunder. If Seller agrees to provide such services,        the  Parties  will  negotiate  in  good  faith  regarding  appropriate documentation  to        reflect such services. If Seller declines to provide such services, Buyer may engage        the applicable third party on terms no more favorable to such third party than those        provided in the notice to Seller.               (ii)  Without in any way limiting the provisions of the foregoing clause        (i), Buyer shall in all events use commercially reasonable efforts to engage a third        party to provide such maintenance that is not a competitor of Seller or its Affiliates        and is not in litigation or other material dispute with Seller.   Section 10.3 Permitted Disclosures.            (a) Legally Compelled Disclosure.  Confidential Information may be disclosed     (i) as required or requested to be disclosed by a Party or any of its Affiliates or their     respective  stockholders,  members,  subsidiaries  or  Representatives  as  a  result  of  any     applicable Legal Requirement or rule or regulation of any stock exchange, the Financial     Industry  Regulatory  Authority,  Inc.  or  other  regulatory  authority  or  self-regulatory     authority having jurisdiction over such Party, (ii) as required or requested by the IRS,     the Department of Justice or the Office of the Inspector General in connection with a     Facility, cash grant, or tax credits relating thereto, including in connection with a request     for any private letter ruling, any determination letter or any audit or (iii) as required     under  any  Interconnection  Agreement.   If  a  Party  becomes  compelled  by  legal  or     administrative process to disclose any Confidential Information, such Party shall, to the     extent permitted by Legal Requirements, provide the other Party with prompt notice so     that the other Party may seek a protective order or other appropriate remedy or waive     compliance with the non-disclosure provisions of this Section 10.3 with respect to the     information required to be disclosed.  If such protective order or other remedy is not     obtained, or such other Party waives compliance with the non-disclosure provisions of     this Section 10.3 with respect to the information required to be disclosed, the first Party     shall furnish only that portion of such information that it is advised by counsel is legally     required to be furnished and shall exercise reasonable efforts, at the expense of the Party     whose  Confidential  Information  is  being  disclosed,  to  obtain  reliable  assurance  that                                    61  





 






                confidential  treatment  will  be accorded  such  information,  including,  in  the  case  of  disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to  the maximum extent permitted by applicable Legal Requirements, such information will  not be made available for public inspection pursuant to Section 6110 of the Code.         (b) Disclosure to Representatives.  Notwithstanding the foregoing, and subject  always to the restrictions in Section 10.2, a Party may disclose Confidential Information  received by it to its and its Affiliates’ actual or potential investors or financing parties  and its and their employees, consultants, legal counsel or agents who have a need to  know such information; provided that such Party informs each such Person who has  access to the Confidential Information of the confidential nature of such Confidential  Information, the terms of this Agreement, and that such terms apply to them.  The Parties  shall use commercially reasonable efforts to ensure that each such Person complies with  the terms of this Agreement and that any Confidential Information received by such  Person is kept confidential.         (c) Securities Filings.  A Party may file this Agreement as an exhibit to any  relevant filing with the Securities Exchange Commission (or equivalent foreign agency)  in accordance with Legal Requirements only after complying with the procedure set  forth in this Section 10.3(c).  In such event, the Party seeking such disclosure shall  prepare  a  draft  confidential  treatment  request  and  proposed  redacted  version  of  this  Agreement to request confidential treatment for this Agreement, and the other Party  agrees to promptly (and in any event, no less than fourteen (14) days after receipt of  such  confidential  treatment  request  and  proposed  redactions)  give  its  input  in  a  reasonable manner in order to allow the Party seeking disclosure to file its request within  the time lines prescribed by Legal Requirements.  The Party seeking such disclosure  shall exercise commercially reasonable efforts to obtain confidential treatment of the  Agreement from the Securities Exchange Commission (or equivalent foreign agency)  as represented by the redacted version reviewed by the other Party. Each Party shall bear  its own costs in connection with such efforts.         (d) Other  Permitted  Disclosures.   Nothing  herein  shall  be  construed as  prohibiting a Party hereunder from using such Confidential Information in connection  with (i) any claim against the other Party, (ii) any exercise by a Party hereunder of any  of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their  respective Affiliates, (iv) a disposition or proposed disposition by any direct or indirect  Affiliate of Buyer of all or a portion of such Person’s equity interests in Buyer, (v) a  disposition or proposed disposition by Buyer of any Bloom System or Facility, or (vi)  any disclosure required to be made to a PPA Customer (or otherwise) under a PPA or a  Site License, provided that, in the case of items (iii), (iv) and (v), the potential financing  party  or  purchaser  has  entered  into  a  confidentiality  agreement with respect to  Confidential  Information  on  customary  terms  used  in  confidentiality  agreements  in  connection with corporate financings or acquisitions before any such information may  be disclosed and a copy of such confidentiality agreement has been provided to the non- disclosing  party  for  informational  purposes,  which  copy  of  such  confidentiality  agreement may contain redactions of confidential information relating to the potential  financing or purchaser.  No disclosures of Confidential Information shall be made by                                 62  





 






           Buyer in exercise of its rights under this Section 10.3(d) until Seller has first had the          opportunity to exercise its right to take or purchase the Bloom System in question, if          applicable.                                    ARTICLE XI.                      LICENSE AND OWNERSHIP; SOFTWARE        Section 11.1 IP License to Use.  Subject to Section 11.2, Seller grants to Buyer a limited  (as  described  herein),  non-exclusive,  royalty-free,  irrevocable  (except  as  described  in  ARTICLE XII hereof), non-transferable (except as described herein) license to use the Intellectual  Property,  including  Seller’s  proprietary  Software,  contained  in  the  Documentation,  the  Components and the Facilities purchased hereunder (collectively, “Seller’s Intellectual Property”)  in conjunction with the purchase, use, operation, maintenance, repair and, subject to Section 3.6(b),  sale of the Bloom Systems and in conjunction with each Facility in accordance with the terms  hereof and each PPA and Interconnection Agreement (the “IP License”); provided that (a) such  license may be transferred or sub-licensed upon a transfer of a Bloom System to any Person who  acquires such Bloom System, subject to Buyer’s compliance with Section 3.6(b), (b) such license  may be transferred or sub-licensed by Buyer to any third party Buyer  is  entitled  to  engage  to  maintain any Facility pursuant to Section 10.2(c), (c) such license may be transferred by Buyer to  any successor or assign of Buyer permitted pursuant to Section 14.4, and (d) in the event of a  voluntary or involuntary Bankruptcy of Buyer, Seller hereby expressly consents to the assumption  and assignment of the IP License by Buyer as necessary to allow Buyer’s continued use of each  Bloom System and/or Facility in accordance with the terms hereof and, as applicable, each PPA  and Interconnection Agreement.  Seller shall retain all right, title and ownership of any and all  Intellectual Property licensed by Seller hereunder.  No right, title or interest in any such Intellectual  Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as  otherwise expressly set forth herein.  Buyer shall not, except as otherwise provided herein, modify,  network, rent, lease, loan, sell, distribute or create derivative works based upon Seller’s Intellectual  Property in whole or part, or cause or knowingly allow any third party to do so.           Section 11.2 Grant of Third Party Software License.                 (a) Seller  grants  to  Buyer  a  limited  (as  described  herein),  non-exclusive,          royalty-free,  irrevocable  (except  as  described  in  ARTICLE XII  hereof),  non-         transferable (except as described herein) license to use the third party Software (the          “Software License”); provided that (i) such license may be transferred or sub-licensed          upon a transfer of a Bloom System to any Person who acquires such Bloom System, (ii)          such license may be transferred or sub-licensed by Buyer to any third party Buyer is          entitled to engage to maintain any Facility pursuant to Section 10.2(c), and (iii) such          license  may  be  transferred  by  Buyer  to  any  successor  or  assign of  Buyer  permitted          pursuant to Section 14.4.  No right, title or interest in any Software provided to Buyer          (including  all  copyrights,  patents,  trade  secrets  or  other  intellectual  or  intangible          property  rights  of  any  kind  contained  therein)  is  granted,  transferred,  or  otherwise          conveyed to Buyer under this Agreement except as expressly set forth herein.  Buyer          agrees not to reverse engineer or decompile the Software or otherwise use the Software          for any purpose other than in connection with the use of the Facilities.  Further, Buyer          shall not modify, network, rent, lease, loan, sell, distribute or create derivative works                                         63  





 






             based upon the Software in whole or part, or cause or knowingly allow any third party           to do so.                  (b) All data collected on the Facilities by Seller using the Software and data           collected  on  the  Facilities  using  Seller’s  internal  proprietary  Software  are  the  sole           property of Seller to be used by Seller in accordance with Legal Requirements, and           Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth           in ARTICLE XII hereof), royalty-free license to use the data collected on the Facilities           using such Software or Seller’s internal proprietary software only for purposes of using           such Facilities and administering the Transaction Documents or as required pursuant to           the  terms  of  any  PPA,  Site  License  or  Interconnection  Agreement,  provided  the           provisions of ARTICLE X on confidentiality are maintained.          Section 11.3 Effect on Licenses.  All rights and licenses granted under or pursuant to   this Agreement by Seller are, and shall otherwise be deemed to be, for purposes of Section 365(n)   of the U.S. Bankruptcy Code and of any similar provisions of applicable laws under any other   jurisdiction (collectively, the “Bankruptcy Laws”), licenses of rights to “intellectual property” as   defined  under  the  Bankruptcy  Laws.   If  a  case  is  commenced  by  or  against  Seller  under  the   Bankruptcy Laws (excluding a reorganization proceeding under Chapter 11 of the U.S. Bankruptcy   Code if Seller is continuing to perform all of its obligations under this Agreement), Seller (in any   capacity, including debtor-in-possession) and its successors and assigns (including a trustee under   the  Bankruptcy  Laws)  shall,  as  Buyer  may  elect  in  a  written  request,  immediately  upon  such   request:                  (a) perform all of the obligations provided in this Agreement to be performed           by Seller including, where applicable, providing to Buyer portions of such intellectual           property  (including  embodiments thereof)  held  by  Seller  and  such  successors  and           assigns or otherwise available to them and to which Buyer is entitled to have access           under this Agreement; and                  (b) not  interfere  with  the  rights  of  Buyer  under  this  Agreement,  or  the           Transaction Documents, to such intellectual property (including such embodiments),           including any right to obtain such intellectual property (or such embodiments) from           another entity, to the extent provided in the Bankruptcy Laws.         Section 11.4 No Software Warranty.   Buyer acknowledges and agrees that the use of   the Software is at Buyer’s sole risk.  The Software and related documentation are provided “AS   IS”  and  without  any  warranty  of  any  kind  and  Seller  EXPRESSLY  DISCLAIMS  ALL   WARRANTIES,  EXPRESS  OR  IMPLIED,  INCLUDING,  BUT  NOT  LIMITED  TO,    THE  IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR   PURPOSE.          Section 11.5 IP Related Covenants.  If Seller grants, bargains, sells, conveys, mortgages,   assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for   Seller or its Affiliates to perform their respective obligations under the Transaction Documents or   (b) for the continued maintenance and operation of the Facilities without a material decrease in                                           64  





 






     performance of the Facilities, Seller shall cause such act or transaction to be subject to the grant of  the IP License and Software License under this Agreement.         Section 11.6 Representations and Warranties.  Seller represents and warrants to Buyer   as of the Original PUMA Agreement Date and as of each Purchase Date as follows with respect to   all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective   obligations under the Transaction Documents, and (ii) for the continued operation of the Facilities  in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements  without a material decrease in performance of the Facilities:                  (a) Seller owns or has the right to use and to authorize Buyer to use all such           Intellectual Property and Software; and                    (b) Seller and its Affiliates are not infringing on any Intellectual Property of           any third party with respect to the actions described in subsection (i) and (ii) of Section           11.6 and the Facilities do not infringe on any Intellectual Property of any third party.    Notwithstanding  the  foregoing,  Seller  makes  no  representations or  warranties  regarding  any   Intellectual Property rights relating to the Battery Solution other than in respect of the parts or   components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that   are used to manufacture the Battery Solution.                                    ARTICLE XII.                      EVENTS OF DEFAULT AND TERMINATION         Section 12.1 Seller Default.  The occurrence at any time of any of the following events   shall constitute a “Seller Default”:                  (a) Failure to Pay.  The failure of Seller to pay any undisputed amounts owing           to Buyer on or before the day following the date on which such amounts are due and           payable under the terms of this Agreement and Seller’s failure to cure each such failure           within ten (10) Business Days after Seller receives written notice from Buyer of each           such failure;                  (b) Failure to Perform Other Obligations.  Unless due to a Force Majeure Event,           the failure of Seller to perform or cause to be performed any other material obligation           required  to  be  performed  by  Seller  under  this  Agreement,  or  the failure of any           representation and warranty set forth herein to be true and correct as and when made;           provided, however, that if such failure by its nature can be cured, then Seller shall have           a period of thirty (30) days after receipt of written notice of such failure to cure the same           and a Seller Default shall not be deemed to exist during such period; provided, further,           that if Seller commences to cure such failure during such period and is diligently and in           good  faith  attempting  to  effect  such  cure,  said  period  shall  be  extended  for  sixty           (60) additional days; notwithstanding the foregoing, the cure period set forth above will           in no event exceed (and will be deemed modified as necessary to match) the cure period           applicable to any particular failure or breach pursuant to a PPA.                                           65  





 






                 (c) Termination Related to Equinix PPA. The termination of (i) this Agreement          with respect to any Facilities under the Equinix PPA pursuant to Section 12.7(b) or (ii)          the  Equinix  PPA,  in  each  case  relating  to,  resulting  from  or  arising  out  of  or  in          connection with any act or omission by Seller, Seller Affiliate, the Service Provider or          a Seller or Seller Affiliate agent, representative or subcontractor at any tier that results          in a breach of Section 7.1(h)(i) of the Equinix PPA.                 (d) Failure  to  Remedy  Injunction.   The  failure  of  Seller  to  remedy any          injunction that prohibits Buyer’s use of any Facility as contemplated by Section 13.1          within  sixty  (60)  days  of  Seller’s  receipt  of  written  notice  of  Buyer  being  enjoined          therefrom; or                 (e) Bankruptcy.   If  Seller  (i) admits  in  writing  its  inability  to  pay  its  debts          generally as they become due; (ii) files a petition or answer seeking reorganization or          arrangement under the federal bankruptcy laws or any other Legal Requirements of the          United  States  of  America  or  any  State,  district  or  territory  thereof;  (iii) makes  an          assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of          the whole  or any  substantial part  of  its  assets;  (v) has  a  petition  in  bankruptcy  filed          against  it,  and  such  petition  is  not  dismissed  within sixty  (60)  days  after  the  filing          thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree          appointing a receiver of the whole or any substantial part of Seller’s assets, and such          order, judgment or decree is not vacated or set aside or stayed within sixty (60) days          from the date of entry thereof; or (vii) under the provisions of any other law for the relief          or aid of debtors, any court of competent jurisdiction shall assume custody or control of          the whole or any substantial part of Seller’s assets and such custody or control is not          terminated or stayed within sixty (60) days from the date of assumption of such custody          or control.         Section 12.2 Buyer Default.  The occurrence at any time of the following events with  respect to Buyer shall constitute a “Buyer Default”:                 (a) Failure to Pay.  The failure of Buyer to pay any undisputed amounts owing          to Seller on or before the day following the date on which such amounts are due and          payable under the terms of this Agreement and Buyer’s failure to cure each such failure          within ten (10) Business Days after Buyer receives written notice of each such failure;          or                 (b) Failure to Perform Other Obligations.  Unless due to a Force Majeure Event,          the failure of Buyer to perform or cause to be performed any material obligation required          to be performed by Buyer under this Agreement or the failure of any representation and          warranty set forth herein to be true and correct as and when made; provided, however,          that if such failure by its nature can be cured, then Buyer shall have a period of thirty          (30) days after receipt of written notice of such failure to cure the same and a Buyer          Default shall not be deemed to exist during such period; provided, further, that if Buyer          commences to cure such failure during such period and is diligently and in good faith          attempting to effect such cure, said period shall be extended for sixty (60) additional          days.                                         66  





 






                 (c) Bankruptcy.   If  Buyer  (i) admits  in  writing  its  inability  to  pay  its  debts          generally as they become due; (ii) files a petition or answer seeking reorganization or          arrangement under the federal bankruptcy laws or any other Legal Requirements of the          United  States  of  America  or  any  State,  district  or  territory  thereof;  (iii) makes  an          assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of          the whole  or any  substantial part  of  its  assets;  (v) has  a  petition  in  bankruptcy  filed          against  it,  and  such  petition  is  not  dismissed  within sixty  (60)  days  after  the  filing          thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree          appointing a receiver of the whole or any substantial part of Buyer’s assets, and such          order, judgment or decree is not vacated or set aside or stayed within sixty (60) days          from the date of entry thereof; or (vii) under the provisions of any other law for the relief          or aid of debtors, any court of competent jurisdiction shall assume custody or control of          the whole or any substantial part of Buyer’s assets and such custody or control is not          terminated or stayed within sixty (60) days from the date of assumption of such custody          or control.         Section 12.3 Buyer’s Remedies Upon Occurrence of a Seller Default.  If a Seller Default  has occurred under Section 12.1(e), Buyer may terminate this Agreement by written notice, and  assert  all  rights  and  remedies  available  to  Buyer  under  Legal  Requirements  subject  to  the  limitations of liability set forth in Section 13.5.  If a Seller Default has occurred under Section  12.1(c), Buyer may, (a) at its option, (i) terminate this Agreement by written notice, and assert all  rights and remedies available to Buyer under Legal Requirements subject to the limitations of  liability set forth in Section 13.5, or (ii) terminate this Agreement with respect to any or all of the  Facilities installed pursuant to the Equinix PPA and assert all rights and remedies available to  Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5,  and (b) require Seller, at Buyer’s option, to repurchase pursuant to Section 12.7(c) the relevant  Facilities in respect of which this Agreement is being terminated. If a Seller Default has occurred  under Section 12.1(a), Section 12.1(b) or Section 12.1(d), Buyer may terminate this Agreement  only with respect to those Facilities for which such Seller Default has occurred by written notice,  and (x) assert all rights and remedies available to Buyer under Legal Requirements subject to the  limitations of liability set forth in Section 13.5, or (y) require Seller and, if so required, Seller shall  repurchase the relevant Facility in respect of which this Agreement is being terminated from Buyer  on an AS IS basis by paying the Refund Value of any such Facility, calculated as of the date of  such refund, in which case Seller shall take title to such Facility upon paying the Refund Value,  and such Facility shall no longer constitute a portion of the Portfolio; provided, however, that if a  Seller Default has occurred under Section 12.1(a) or Section 12.1(b) and remains uncured with  respect to ten (10) or more Facilities, then Buyer may terminate this Agreement by written notice  with respect to all Facilities.  If a Facility will be removed pursuant to this Section 12.3, Seller  shall at its sole cost and expense remove the Facility and any other ancillary equipment (including  the concrete pad and any other improvements to the applicable Site to the extent required under  the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition  before  the  installation,  including  closing  all  utility  connections  and  properly  sealing  any  Site  penetrations in the manner required by all Legal Requirements and the applicable PPA or Site  License.         Section 12.4 Seller’s Remedies Upon Occurrence of a Buyer Default.  If a Buyer Default  has occurred under Section 12.2(c), Seller may terminate this Agreement by written notice, and                                         67  





 






   assert  all  rights  and  remedies  available  to  Seller  under  Legal Requirements  subject  to  the  limitations  of  liability  set  forth  in  Section  13.5.   If  a  Buyer  Default  has  occurred  Seller  may  terminate  this  Agreement  only  with  respect  to  those  Facilities for  which  a  Buyer  Default  has  occurred  and  remains  uncured;  provided  that, if  such  Buyer  Default is  a  Buyer  Default  under  Section 12.2(a) and has occurred and remains uncured with respect to ten (10) or more Facilities,  then Seller may terminate this Agreement with respect to all Facilities not yet paid in full by Buyer  by written notice and assert all rights and remedies available to Seller under Legal Requirements  with respect to those Facilities for which a Buyer Default has occurred, subject to the limitations  of liability set forth in Section 13.5, including without limitation retaining any prior payments with  respect to such Facilities and selling such Facilities to another buyer.          Section 12.5 Preservation of Rights.  Termination of this Agreement shall not affect any  rights or obligations as between the Parties which may have accrued prior to such termination or  which expressly or by implication are intended to survive termination whether resulting from the  event  giving  rise  to  termination  or  otherwise,  including,  without  limitation,  ARTICLE X,  ARTICLE XI, and ARTICLE XIII.         Section 12.6 Force Majeure.  If either Party is rendered wholly or partially unable to  perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party  (the  “Claiming  Party”)  will  be  excused  from  whatever  performance  is  affected  by  the  Force  Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a  reasonable time after the occurrence of such Force Majeure Event gives the other Party notice  describing the particulars of the occurrence; (b) the suspension of performance shall be of no  greater scope and of no longer duration than is reasonably required by the Force Majeure Event;  (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure  Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise  commercially reasonable efforts to correct or cure the event or condition excusing performance  and resume performance of all its obligations; and (e) when the Claiming Party is able to resume  performance of its obligations under this Agreement, the Claiming Party shall promptly give the  other Party notice to that effect and shall promptly resume performance.          Section 12.7 Termination of Facilities Subject to PPAs.                  (a) In the event that a PPA is terminated with respect to a Facility,  this          Agreement shall be deemed terminated with respect to that Facility and Buyer shall owe          Seller no further Services Fees in respect of such Facility for any period from and after          the date of termination.  For clarity, nothing in this Section 12.7(a) shall limit in any          manner any other remedies that may be available to Buyer under this Agreement.                 (b) In  the  event  of  a  Compliance  Law Violation  (as  defined  in  the  Equinix          PPA), the Parties will cooperate in good faith to cure such Compliance Law Violation          in accordance with the terms of Section 7.1(h)(i) of the Equinix PPA including, without          limitation, by ensuring that any individual(s), Seller Affiliate, Service Provider and/or          Seller  or  Seller  Affiliate  agent,  representative  or  subcontractor  at  any  tier  directly          involved in the Compliance Law Violation are no longer in any way performing under          the Equinix PPA.  In the event that, notwithstanding such efforts, such Compliance Law          Violation  either (i)  can only  be  cured  by  the termination  of  Seller’s performance in                                         68  





 






                  connection with the Equinix PPA, or (ii) results in the termination of the Equinix PPA,    then,  in  either  case,  Buyer  may  terminate  this Agreement  with  respect  to  any  or all    Facilities installed pursuant to the Equinix PPA and Buyer shall owe Seller no further    Service Fees in respect of such Facility(ies) for any period from and after the date of    termination.  For clarity, nothing in this Section 12.7(b) shall limit in any manner any    other remedies that may be available to Buyer under this Agreement.           (c) In  the  event  that  the  termination  of  this  Agreement  with  respect  to  any    Facilities  under  Section 12.7(a)  or  Section  12.7(b)  results  from  the  default  of  Seller    under this Agreement,  including, for clarity, in connection with a breach of Section    7.1(h)(i) of the Equinix PPA, Seller shall, at Buyer’s option, repurchase the relevant    Facilities in respect of which this Agreement is being terminated from Buyer on an AS    IS basis by paying the Refund Value of any such Facilities, calculated as of the date of    such  refund,  in  which  case  Seller  shall  take  title  to  such  Facilities  upon  paying  the    Refund Value, and the applicable Bloom Systems shall no longer constitute a portion of    the Portfolio.  If a Facility will be removed pursuant to this Section 12.7(c), Seller shall    at its sole cost and expense remove (or cause the removal of) the Facility and any other    ancillary  equipment  (including  the  concrete  pad  and  any  other  improvements  to  the    applicable Site to the extent required under the applicable PPA or Site License) from the    applicable  Site,  restoring  the Site  to  its  condition  before  the  installation,  including    closing all utility connections and properly sealing any Site penetrations in the manner    required by all Legal Requirements and the applicable PPA or Site License.             (d) In the event that this Agreement is terminated with respect to any Facilities    under Section 12.7(a) for any reason other than as set forth in Section 12.7(b) or Section    12.7(c), Seller shall, at Buyer’s option, remove (or cause the removal of) the Facility    and  any  other  ancillary  equipment  (including  the  concrete  pad  and  any  other    improvements to the applicable Site to the extent required under the applicable PPA or    Site  License)  from  the  applicable  Site,  restoring  the  Site  to  its  condition  before  the    installation,  including  closing  all  utility  connections  and  properly  sealing  any  Site    penetrations, all in the manner required by all Legal Requirements and the applicable    PPA or Site License.  If a Facility is removed by Seller pursuant to this Section 12.7(d),    Buyer shall reimburse Seller, within thirty (30) days following receipt of Seller’s invoice    therefor, for all reasonable and documented costs and expenses incurred by Seller in    connection with such removal, including (i) payment for Seller’s employees’ services    in  accordance  with  Seller’s  then-applicable  hourly  rates  charged  to  other  Seller    customers for similar work, and (ii) reimbursement of any costs incurred to third party    vendors or service providers on a pass-thru basis without mark-up.                             ARTICLE XIII.                          INDEMNIFICATION   Section 13.1 IP Indemnity.           (a) Except as expressly limited below, Seller agrees to indemnify, defend and    hold Buyer, its members, and their Affiliates and their respective managers, officers,    directors,  employees  and  agents  harmless  from  and  against  any  and  all  Third  Party                                   69  





 






                Claims  and  Indemnifiable  Losses (including  in  connection  with  obtaining  any  Intellectual  Property  necessary  for  continuation  of  completion,  operation  and  maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in  connection with any alleged infringement, conflict, violation or misuse of any patents,  copyrights,  trade  secrets  or  other  third  party  Intellectual  Property  rights  by  Bloom  Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof)  or the exercise of the IP License or the Software License granted pursuant to Section  11.1 and Section 11.2 hereunder.  Buyer shall give Seller prompt notice of any such  claims.  Seller shall be entitled to participate in, and, unless in the opinion of counsel for  Seller a conflict of interest between the Parties may exist with respect to such claim,  assume  control  of  the  defense  of  such  claim  with  counsel  reasonably  acceptable  to  Buyer.  Buyer authorizes Seller to settle or defend such claims in its sole discretion on  Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer  and subject to Buyer’s participation rights set forth in this Section 13.1.  Buyer shall  assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in  defending any such claim.  If Seller does not assume the defense of such claim, or if a  conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer  on  a  monthly  basis  for  Buyer’s  reasonable  defense  expenses  of  such  claim  through  separate  counsel  of  Buyer’s  choice  reasonably  acceptable  to  Seller.   Even  if  Seller  assumes  the  defense  of  such  claim,  Buyer  may,  at  its  sole  option,  participate  in  the  defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder.  Should Buyer be enjoined from selling or using any Bloom System as a result of such  claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain  for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so  that  it  becomes  non-infringing but  still  substantially  meets  the  original  functional  specifications of the Bloom System (in which event, for the avoidance of doubt, all  warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom  System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System  meeting the functional specifications of the Bloom System; or (iv) when and if none of  the first three options is reasonably available to Seller, authorize the return of the Bloom  System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to  Seller for the cost of the Bloom Systems and BOF, net of any monies paid by Seller to  Buyer for any performance guaranties or other warranty claims; provided that Seller  shall not elect the option in the preceding clause (i) without Buyer’s written consent if  such election could reasonably be expected to materially decrease Buyer’s revenues or  materially increase Buyer’s operating expenses.         (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:             (i)   for Intellectual Property infringement, conflict, violation or misuse      arising from or in connection with any combination made by Buyer of any Bloom      System with any other product or products or modifications made by or on behalf      of  Buyer  to  any  part  of  the  Bloom  System,  unless  (A)  such  combination  or      modification is in accordance with Seller’s specifications for the Bloom System,      (B) such combination or modification is made by or on behalf of or at the written      request  of  Seller  where  Seller  has  requested  the  specific  combination  or      modification  giving  rise  to  the claim  by  Buyer,  or  (C)  such  other  product  or                                 70  





 






                 products would not infringe the Intellectual Property rights of a third party but for              the combination with any part of the Bloom System;                      (ii)  for infringement of any Intellectual Property rights arising in whole               or in part from any aspect of the Bloom System which was designed by or requested               by Buyer on a custom basis.  For the avoidance of doubt, the integration of the               Battery Solution into any Facility shall not constitute an alteration designed by or               requested by Buyer on a custom basis; or                      (iii) for infringement of any Intellectual Property rights arising in whole               or in part from any aspect of the Battery Solution (unless such infringement arises               in whole or in part from any aspect of the parts or components supplied by Seller               or  any  of  its  Affiliates  to  the  Battery  Solution  Manufacturer  that  are  used  to               manufacture the Battery Solution).          Section 13.2 Indemnification of Seller by Buyer.  Buyer shall indemnify, defend and   hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each,   a  “Seller  Indemnitee”)  from  and  against  any  and  all  Indemnifiable  Losses  asserted  against  or   suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for   Seller Indemnitee’s breach of any contract to which a Seller Indemnitee is a party) and in any way   relating to, resulting from or arising out of or in connection with any Third Party Claims against a  Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional   acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s   control  (excluding  Seller  and  any  Seller  Affiliate)  or  breach  by  Buyer  of  its  representations,   warranties or obligations under any Transaction Document, or (b) operation of Bloom Systems by   any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems   have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties,   covenants and indemnities under this Agreement and any other Transaction Document to which   Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent   caused by or arising out of (i) any negligence, fraud or willful misconduct of any Seller Indemnitee   or the breach by Seller or any Seller Indemnitee of its covenants, representations and warranties   under this Agreement or in any Payment Certificate, or (ii) any operation of Bloom Systems by a   party outside of  Buyer’s control or direction or by a party taking  such  action  despite  Buyer’s   reasonable efforts to prevent the same.          Section 13.3 Indemnification of Buyer by Seller.                  (a) Seller  shall  indemnify,  defend  and  hold  harmless  Buyer,  its  members,           managers,  officers,  directors,  employees,  Affiliates  and  agents  (each,  a  “Buyer           Indemnitee”)  from  and  against  any  and  all  Indemnifiable  Losses asserted  against  or           suffered by any Buyer Indemnitee arising out of (i) a claim by a third party (other than           a claim for Buyer Indemnitee’s breach of contract (other than any breach by a Buyer           Indemnitee of any PPA or Site License based on any breach by Seller of its obligations           under this Agreement to perform obligations under such PPA or Site License on behalf           of Buyer)) and in any way relating to, resulting from or arising out of or in connection           with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or           in  connection  with  the  negligent  or  intentional  acts  or  omissions  of  Seller  or  its                                          71  





 






           subcontractors, agents or employees or others under Seller’s control (other than matters          addressed separately in Section 13.1, which shall be governed by the terms thereof), (ii)          a breach by Seller of its representations, warranties or obligations under any Transaction          Document or in any Payment Certificate, including any breach of a PPA or Site License          relating to, resulting from or arising out of or in connection with any act or omission by          Seller,  Seller  Affiliate,  the  Service  Provider  or  a  Seller  or  Seller  Affiliate  agent,          representative or subcontractor at any tier in respect of EPC Services or Facility Services          that Seller is obligated to perform on behalf of Buyer in fulfillment of such obligations          under the PPA or Site License including, for clarity, a breach of Section 7.1(h)(i) of the          Equinix PPA relating to, resulting from or arising out of or in connection with any act          or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate          agent, representative or subcontractor at any tier, or (iii) any injury, death, or damage to          property caused by a defect in a Facility; provided that Seller shall have no obligation          to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or          willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee          of its covenants, representations and warranties under this Agreement or the inability of          Buyer to ultimately utilize any tax benefits.  For the avoidance of doubt, the Parties          acknowledge and agree that in the event that a Seller failure to remove a Facility in          accordance  with  the  requirements of  the  applicable  PPA  or  Site License  results  in          Buyer’s loss of such Facility, Buyer’s “Indemnifiable Loss” arising out of such Seller          failure shall be deemed to include the Fair Market Value of such Facility as of such date,          unless  (x)  Seller  had  no  actual  knowledge  regarding  the  requirement  to  remove  the          Facility and Buyer failed to provide notice to Seller regarding the requirement to remove          the Facility on or prior to the date that is five (5) Business Days before the deadline for          such removal under the applicable PPA or Site License, or (y) Seller is not afforded          access to the applicable Site consistent with the requirements of the applicable PPA or          Site License to perform such removal.                  (b) Except as otherwise set forth in this Agreement, in the event that Buyer          incurs any liability, cost, loss or expense to a PPA Customer (including relating to a          breach of a PPA or Site License) in relation to the repurchase by or return to Seller of          any  Bloom  System  under  this  Agreement,  Seller  shall  indemnify  and  hold  Buyer          harmless for any such liability, cost, loss or expense incurred by Buyer.                 (c) Seller  acknowledges  and  agrees  that  each  PPA  Customer  is  an  intended          third  party  beneficiary  of  Seller’s  indemnification  obligations  in  favor  of  the  Buyer          Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer          the right to seek indemnification directly from Seller in the event that Buyer owes to          such  PPA  Customer  any  indemnification  obligations  arising  out  of  any  actions  or          inactions of Seller under this Agreement that give rise to an indemnification obligation          of Seller in favor of any Buyer Indemnitee.         Section 13.4 Indemnity  Claims  Procedure.   Except  as  otherwise  provided  in  Section  13.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other  Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable  opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist  with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable                                         72  





 






     to  the  Indemnifying  Party.   If  the  Indemnifying  Party  does  not assume  the  defense  of  the   Indemnified Party or if a conflict precludes the Indemnifying Party from assuming the defense,   then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the  Indemnified  Party’s  reasonable  defense  expenses  through  separate  counsel  of  the  Indemnified  Party’s choice.  Even if the Indemnifying Party assumes the defense of the Indemnified Party with  acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its  own expense, with counsel of its own choice without relieving the Indemnifying Party of any of  its obligations hereunder.         Section 13.5 Limitation of Liability.                  (a) Notwithstanding anything to the contrary in this Agreement, in no event           shall  a  Party  be  liable  to  the  other  Party  for  an  amount  in  excess  of  the  Maximum           Liability unless and to the extent such liability is the result of (A) fraud, willful default,           willful misconduct, or gross negligence of a Party or that Party’s employees, agents,           subcontractors (except that for the purposes of this provision, Seller and its employees,           agents and subcontractors will not be deemed to be employees, agents or subcontractors           of Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer for Buyer’s           failure to pay the Service Fees or Purchase Price for any Facility (which amounts shall           not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to           injury to or death of any individual, (E) Seller’s abandonment to the extent constituting           a repudiation of this Agreement in respect of all or any part of the Facilities, (F) events           or circumstances in respect of which insurance proceeds are available or that would have           been  available  but  for  a  failure  by  Seller  to  maintain,  or  comply with the terms of,           insurance  that  it  is  required  to  obtain  and  maintain  under  this  Agreement,  and  any           amounts so received will not be included when calculating Seller’s Maximum Liability,           (G) a claim of Buyer against Seller for Seller’s breach of a Fundamental Representation,           (H) any purchase price adjustment pursuant to Section 2.8, (I) any Indemnifiable Losses           asserted against or suffered by Buyer in connection with the LREC Contracts, or (J) any           Indemnifiable Losses asserted against or suffered by Buyer in connection with a breach           of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in           connection with any act or omission by Seller, Seller Affiliate, the Service Provider or           a Seller or Seller Affiliate agent, representative or subcontractor at any tier.  Subject           always to the Maximum Liability limitations set forth in the preceding sentence, except           for damages or amounts specifically provided for in this Agreement or in connection           with  the  indemnification  for  damages  awarded  to  a  third  party  under  a  Third  Party           Claim, damages hereunder are limited to direct damages, and in no event shall a Party           be liable to the other Party, and the Parties hereby waive claims, for indirect, punitive,           special or consequential damages or loss of profits; provided, however, that the loss of           profits language set forth in this Section 13.5(a) shall not be interpreted to exclude from           Indemnifiable Losses any losses arising as a result of (i) the loss or recapture of any           ITC, or (ii) in connection with a breach of Section 7.1(h)(i) of the Equinix PPA relating           to, resulting from or arising out of or in connection with any act or omission by Seller,           Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative           or subcontractor at any tier.  Notwithstanding anything to the contrary set forth herein,           in no event shall the limitation of liability set forth above as it pertains to Seller limit           Seller’s obligations to Buyer for any payments owed by Seller to Buyer regarding (i) the                                          73  





 






             Refund Value of any Facility(ies), (ii) Performance Guaranty payments or Indexed PPA           Tolling Rate Guaranty payments, (iii) liability for any PPA Warranties that Seller has           incurred  pursuant  to  Section  5.8,  (iv)  Indemnifiable  Losses  arising  from  the  loss  or           recapture of any ITC, and/or any Indemnifiable Losses asserted against or suffered by           Buyer in connection with the LREC Contracts or in connection with a breach of Section           7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection           with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or           Seller Affiliate agent, representative or subcontractor at any tier.  Any amounts paid or           payable  by  Seller  to  Buyer  as  described  in  clauses  (i)  through (v)  of  the  preceding           sentence will not be included when calculating Seller’s Maximum Liability.                  (b) Each Party hereby waives any claim under this ARTICLE XIII irrespective           of the legal theory under which it is brought to the extent such claim is covered by the           insurance of the claiming Party.          Section 13.6 Liquidated Damages; Estoppel.  The Parties acknowledge and agree that it   would be impracticable or impossible to determine with precision the amount of damages that   would or may be incurred by Buyer as a result of the Portfolio’s failure to satisfy any Capacity  Warranty.  It is therefore understood and agreed by the Parties that: (a) Buyer may be damaged by  Seller’s failure to satisfy either Capacity Warranty; (b) it would be impractical or impossible to fix  the actual damages to Buyer resulting therefrom; and (c) any cash payments in respect of a claim  under the Performance Guaranty and any Refund Values payable to Buyer under Section 5.7 for   failure to meet such obligations are in the nature of liquidated damages, and not a penalty, and are   fair  and  reasonable  estimate  of  compensation  for  the  losses  that  Buyer  may  reasonably  be   anticipated to incur by such failure.  Seller hereby (i) waives any argument that its failure to comply   with its obligations set forth in Section 5.7 would not cause Buyer irreparable harm, (ii) agrees that   it shall be estopped from arguing the invalidity, or otherwise questioning the reasonableness, of  the liquidated damages provided for herein, and (iii) agrees that it will consent to the entry of  judgment ordering payment of such liquidated damages in any court of competent jurisdiction.   Seller and Buyer each agree that Buyer shall be under no obligation to submit any dispute regarding  the  payment  of  any  Refund  Value  when  due  to  the  dispute  resolution  mechanism  set  forth  in  Section  14.5,  but  may  rather  immediately  pursue  whatever  rights  it  has  available  under  this   Agreement, at law or in equity in accordance with Section 14.6 herein.          Section 13.7 Survival.   The  Parties’  respective  rights  and  obligations  under this   ARTICLE XIII shall survive any total or partial termination of this Agreement.                                     ARTICLE XIV.                           MISCELLANEOUS PROVISIONS          Section 14.1 Amendment  and  Modification.   This  Agreement  may  be  amended,   modified or supplemented only by written agreement of Buyer and Seller.          Section 14.2 Waiver of Compliance; Consents.  Except as otherwise provided in this   Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement   or condition herein may be waived by the Party entitled to the benefits thereof only by a written   instrument  signed  by  the  Party  granting  such  waiver,  but  any  such  waiver  of  such  obligation,                                          74  





 






 covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any   subsequent failure to comply therewith.          Section 14.3 Notices.  All notices, provisions of Documentation, reports, certifications,   or  other  documentation,  and  other  communications  hereunder  shall  be  in  writing  and  shall  be   deemed given when received if delivered personally or by facsimile transmission with completed   transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight   delivery via a nationally recognized courier or registered or certified first class mail (return receipt   requested), postage prepaid, to the recipient Party at its below address (or at such other address or   facsimile number for a Party as shall be specified by like notice; provided, however, that notices   of a change of address shall be effective only upon receipt thereof and that any notice provided by   electronic mail will be followed promptly by another form of notice consistent with this Section   14.3 and will be effective when such follow-up notice is deemed effective):    To Seller:        Bloom Energy Corporation                     1299 Orleans Drive                     Sunnyvale, CA  94089-1137                     Attention:  [***]                     Telephone:  [***]                     Fax:  [***]                     Email:  [***]    To Buyer:         2016 ESA Project Company, LLC                     c/o Southern PowerSecure Holdings, Inc.                     c/o PowerSecure, Inc.                     1609 Heritage Commerce Ct.                      Wake Forest NC 27587                     Attention: President and Chief Executive Officer                    Email: [***][***]                      and to:                      Southern Company Services, Inc.                     30 Ivan Allen Jr. Blvd., NW                     Bin SC 1203                     Atlanta, GA 30308                     Attention: General Counsel                     Email: [***]                      with a copy to:                      Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.                      150 Fayetteville Street, Suite 2300                      Raleigh, NC 27601                     Attention: [***]                     Telephone: [***]                     Email: [***]                                          75   [***] Confidential Treatment Requested 





 






Section 14.4 Assignment; Subcontractors.             (a) This Agreement and all of the provisions hereof shall be binding upon and    inure to the benefit of the Parties and their respective successors and permitted assigns    (including  by  operation  of  law),  but  neither  this  Agreement  nor any of the rights,    interests  or  obligations  hereunder  shall  be  assigned  by  any  Party  without  the  prior    written consent of the other Party (to be granted in the other Party’s sole discretion),    provided that (i) Buyer may assign its indemnification rights to PPA Customers as set    forth in Section 13.3 upon notice to Seller, (ii) Buyer may assign all of its right, title and    interest in and to this Agreement to an Affiliate wholly owned (directly or indirectly) by    The Southern Company without the prior consent of Seller (provided that such assignee    Affiliate shall assign this Agreement back to the Buyer at any future date that such    assignee  is  no  longer  an  Affiliate  of  the  Buyer),  (iii)  Buyer  may  make  such  an    assignment  without  Seller’s  consent  to  a  successor  to  substantially all of Buyer’s    business, whether in a merger, sale of stock, sale of assets or other transaction (other    than a transaction with an entity that is a competitor of Seller or its Affiliates, unless    consented to under the provisions of paragraph (b)), and (iv) Seller shall be entitled to    subcontract any of its obligations under this Agreement without consent (except as set    forth in Section 4.6) or to assign its obligations under this Agreement to an Affiliate    under common ownership with Seller, provided, further, that (i) such assignment or    subcontracting shall not excuse Seller from the obligation to competently perform any    subcontracted  or  assigned  obligations  or  any  of  its  other  obligations  under  the    Agreement and (ii) nothing in this Agreement shall be deemed to require the consent of    any party with respect to any change in control, merger or sale of all or substantially all    of  the  assets  of  The  Southern  Company  or  Seller.   Any  purported  assignment  or    delegation in violation of this Section shall be null and void.           (b) In the event of an assignment by Buyer or other transaction described in    paragraph (a)(iii), Buyer shall notify Seller of the identity of the proposed assignee or    successor in writing, and Seller shall have the right to consent to such assignment or    transaction in the event that Seller reasonably believes such proposed assignee to be a    competitor  of  Seller.   Seller  shall  notify  Buyer  of  its  determination  within  ten  (10)    Business Days of receipt of notice from Buyer hereunder.  If Seller notifies Buyer that    it has determined that the proposed assignee is a competitor of Seller and that Seller is    electing to withhold consent, then Buyer shall be prohibited from consummating the    proposed transaction unless it has been finally determined that such proposed assignee    is not a competitor of Seller.           (c) Any disputes regarding Seller’s determination of a proposed assignee as a    competitor to Seller shall be resolved as follows:               (i)   Buyer will promptly provide written notification of the dispute to        Seller within five (5) Business Days after notice by Seller that it has determined the        proposed  assignee  to  be  a  competitor  and  that  it  is  withholding  its  consent.         Thereafter,  a  meeting  shall  be  held  promptly  between  the  Parties,  attended  by        Seller’s Chief Financial Officer and Buyer’s Chief Financial Officer, to attempt in        good faith to negotiate a resolution of the dispute, provided that either Party may                                   76  





 






            elect to escalate the dispute to the Parties’ respective Chief Executive Officer at any              time.                       (ii)  If the Parties are not successful in resolving a dispute within ten (10)              Business  Days  of  the  meeting  called  for  above,  the  dispute  shall  be  submitted,              within  ten  (10)  Business  Days  thereafter,  to  a  mediator  with  energy  industry              experience.  The Parties shall cooperate  with  and  provide  such  documents,              information and other assistance as is requested by the mediator to assist in efforts              to resolve the dispute.  The costs of the mediator shall be borne equally by the              Parties.                     (iii) If efforts to mediate are not successful within thirty (30) days of              submitting the dispute to the mediator, both Parties will retain all legal remedies              available to them.         Section 14.5 Dispute Resolution; Service of Process.                 (a) Except  as  provided  in  Section  13.6  and  Section  14.4(c),  in  the event  a          dispute, controversy or claim arises hereunder, including any claim whether in contract,          tort (including negligence), strict product liability or otherwise, the aggrieved Party will          promptly provide written notification of the dispute to the other Party within ten (10)          days after such dispute arises.  Thereafter, a meeting shall be held promptly between the          Parties,  attended  by  representatives of the Parties with decision-making  authority          regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute.           If the Parties are not successful in resolving a dispute within twenty-one (21) days of          such meeting, then, subject to the limitations on remedies set forth in Section 12.3 and          Section  12.4  and  ARTICLE XIII,  either  Party  may  pursue  whatever rights it has          available under this Agreement, at law or in equity in accordance with Section 14.6          herein.                   (b) In the event of any dispute arising out of or relating to this Agreement, each          Party hereby consents to service of process made to the addressees set forth in Section          14.3  herein  either  by  overnight  delivery  by  a  nationally  recognized  courier  or  by          certified first class mail, return receipt requested, and hereby acknowledges that service          by such means shall constitute valid and lawful service of process against the Party being          served.         Section 14.6 Governing Law, Jurisdiction, Venue.  THIS AGREEMENT SHALL BE  GOVERNED  BY  AND  INTERPRETED  IN  ACCORDANCE  WITH  THE  LAWS  OF  THE  STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR  OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE  LAWS  OF  ANOTHER  JURISDICTION  (OTHER  THAN  SECTION  5-1401  OF  THE  NEW  YORK  GENERAL  OBLIGATIONS  LAW).   THE  PARTIES  HEREBY  IRREVOCABLY  SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF  NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN  DISTRICT  OF  NEW  YORK  WITH  RESPECT  TO  ANY  DISPUTE  ARISING  OUT  OF OR  RELATING  TO  THIS  AGREEMENT.   EACH  PARTY  IRREVOCABLY  AND                                         77  





 






UNCONDITIONALLY  WAIVES  TRIAL  BY  JURY  IN  ANY  ACTION,  SUIT  OR  PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM  WITH RESPECT THERETO.          Section 14.7 Counterparts.   This  Agreement  may  be  executed  in  two  or  more  counterparts, each of which shall be deemed an original, but all of which together shall constitute  one and the same instrument.  Signatures delivered by facsimile, portable document format or  other  electronic  means  (including,  without  limitation,  services  such  as  DocuSign)  will  be  considered original signatures, and each Party shall thereafter promptly deliver original signatures  to the other Party.           Section 14.8 Interpretation.  The article, section and schedule headings contained in this  Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and  shall not in any way affect the meaning or interpretation of this Agreement.         Section 14.9 Entire  Agreement.   The  Transaction  Documents  and  the  exhibits,  schedules,  documents,  certificates  and  instruments  referred  to therein,  embody  the  entire  agreement and understanding of the Parties in respect of the transactions contemplated by this  Agreement.  Each Party acknowledges that, in agreeing to enter into this Agreement, it has not  relied on any representation, warranty, collateral contract or other assurance (except those repeated  in this Agreement and any other agreement entered into on the date of this Agreement between the  Parties) made by or on behalf of any other Party at any time before the signature of this Agreement.   Each Party waives all rights and remedies which, but for the immediately preceding sentence,  might  otherwise  be  available  to  it  in  respect  of  any  such  representation,  warranty,  collateral  contract or other assurance.         Section 14.10 Construction of Agreement.  The terms and provisions of this Agreement  represent the results of negotiations between Buyer and Seller, each of which has been represented  by  counsel  of  its  own  choosing,  and  neither  of  which  has  acted under  duress  or  compulsion,  whether legal, economic or otherwise.  Accordingly, the terms and provisions of this Agreement  shall be interpreted and construed in accordance with their usual and customary meanings, and  Buyer  and  Seller  hereby  waive  the  application  in  connection  with  the  interpretation  and  construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms  or provisions contained in this Agreement shall be interpreted or construed against the Party whose  attorney prepared the executed draft or any earlier draft of this Agreement.         Section 14.11 Severability.  If any term or other provision of this Agreement is invalid,  illegal or incapable of being enforced by any rule of law or public policy, all other conditions and  provisions  of  this  Agreement  shall  nevertheless  remain  in  full force  and  effect  so  long  as  the  economic or legal substance of the transactions contemplated hereby is not affected in any manner  materially adverse to any Party.         Section 14.12 Further  Assurances.   Each  Party  agrees  to  execute  and  deliver  such  additional documents and instruments and to perform such additional acts as may be necessary or  appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this  Agreement and the transactions contemplated by this Agreement.                                          78  





 






       Section 14.13 Independent Contractors.  The Parties acknowledge that, save as expressly   set  out  in  this  Agreement  to  the  contrary,  each  Party  is  entering  into  this  Agreement  as  an   independent contractor and nothing in this Agreement shall be interpreted or applied so as to make   the  relationship  of  any  of  the  Parties  that  of  partners,  joint ventures  or  anything  other  than   independent contractors.  For clarity, notwithstanding anything to the contrary herein, including   Seller’s obligation to perform on behalf of Buyer certain of Buyer’s obligations under PPAs and   Site Licenses, neither Seller nor any of its employees, agents, subcontractors or representatives   shall be considered an employee, agent, subcontractor or representative of, nor under the control   of, Buyer under this Agreement.          Section 14.14 Limitation on Export.  Buyer agrees that it will not export, re-export, resell,   ship or divert directly or indirectly any Facility or any part thereof in any form or technical data or  Software furnished hereunder to any country prohibited by the United States Government or any   other Governmental Authority, or for which an export license or other Governmental Approval is   required, without first obtaining such license or approval.          Section 14.15 Time  of  Essence.   Time  is  of  the  essence  with  respect  to  all  matters   contained in this Agreement.          Section 14.16 No  Rights  in  Third  Parties.   Except  as  otherwise  specified  herein,  (a)   nothing in this Agreement nor any action taken hereunder shall be construed to create any duty,   liability or standard of care to any Person that is not a Party, (b) no Person that is not a Party shall   have any rights or interest, direct or indirect, in this Agreement or the services to be provided   hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties   expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to   this Agreement or the services to be provided hereunder.          Section 14.17 Amendment and Restatement of Second A&R PUMA.  By their execution   and delivery of this Agreement, the Parties hereby amend and restate in its entirety the Second   A&R PUMA.  From and after the date hereof, (a) the Parties’ mutual understanding of each of the   matters set forth herein shall be governed by the terms of this Agreement, and (b) any reference to   the Second A&R PUMA in any other agreement(s) shall be understood to refer to this Agreement.                         [Remainder of page intentionally left blank]                                           79  





 






      IN WITNESS WHEREOF, Buyer and Seller have caused this Third Amended and Restated  Purchase,  Use  and  Maintenance  Agreement  to  be  signed  by  their  respective  duly  authorized  officers as of the Agreement Date.     BUYER:                               SELLER:    2016 ESA PROJECT COMPANY, LLC         BLOOM ENERGY CORPORATION   a Delaware limited liability company  a Delaware corporation     By:   ____________________________   By:   ____________________________   Name:                                Name:   Title:                               Title:      [Signature Page to Third Amended and Restated Purchase, Use and Maintenance Agreement]  





 






                                                   Annex A                               Minimum Power Product Example Calculation                               Sample Performance Warranty Example Calculation                         Assumptions                               Number of Facilities in Portfolio                     46                               System Capacity (per Facility)                       200   kW                               Performance Warranty                                86%                        Minimum Power Product Analysis                                Minimum Power Product                               7,912  kW                                Sample Performance Guaranty Example Calculation                         Assumptions                               Number of Facilities in Portfolio                     46                               System Capacity                                      200   kW                               Performance Guaranty                              [***]                       Year Minimum Power Product Analysis                                Minimum Power Product                             [***]    kW                                                    ANNEX A-1  [***] Confidential Treatment Requested 





 






                                    Annex B                                      Insurance    Insurance.  At all times during the Term, without cost to Buyer, Seller shall maintain in force and   effect the following insurance, which insurance shall not be subject to cancellation, termination or   other  material  adverse  changes  unless  the  insurer  delivers  to  Buyer  written  notice  of  the   cancellation, termination or change at least thirty (30) days in advance of the effective date of the   cancellation,  termination  or  material  adverse  change  or  if  notice  from  the  insurer  to  Buyer  of   material  adverse  change  is  not  available  on  commercially  reasonable  terms  then  Seller  shall   provide  Buyer  with  such  notice  as  soon  as  reasonably  possible  after  becoming  aware  of  such   change; provided, that following the Commencement of Operations Date with respect to a Facility,  the insurance required hereunder shall only pertain to Seller’s Facility Services (including, for   clarity, any removal or restoration services provided by Seller):           (a)   Worker's Compensation Insurance as required by the laws of the state in  which Seller’s employees are performing EPC Services or Facility Services;         (b)   Employer's liability insurance with limits at policy inception not less than One   Million Dollars ($1,000,000.00) per occurrence;         (c)   Commercial General Liability Insurance, including bodily injury and property   damage liability (arising from premises, operations, contractual liability endorsements, products   liability, or completed operations) with limits not less than One Million Dollars ($1,000,000.00)   per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate limit at policy   inception;         (d)   If there is exposure, automobile liability insurance in accordance with prudent   industry practice with a limit of not less than One Million Dollars ($1,000,000.00), combined   single limit per occurrence;          (e)   Umbrella liability insurance acting in excess of underlying employer’s   liability, commercial general liability and automobile liability policies with limits not less  than Fifteen Million Dollars ($15,000,000.00) per occurrence, except that any subcontractors   shall be required to maintain such insurance with limits of not less than Three Million   Dollars ($3,000,000.00);          (f)   Professional errors and omission insurance with a limit of not less than One   Million Dollars ($1,000,000.00) per occurrence;         (g)   Environmental/pollution liability insurance with a limit of not less than One   Million Dollars ($1,000,000.00) per claim;         (h)   Builder’s Risk/Installation Coverage for each Facility, with replacement costs   and a delay in startup component (for avoidance of doubt, this requirement is only applicable,   with respect to each Facility, until such Facility’s Commencement of Operations Date); and         (i)   Marine  Cargo  -  Transit  coverage  (including  air,  land  and  ocean cargo,  as   applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence   limit equal to not less than 110% of the value including transit and insurance of such shipment                                     ANNEX B-1  





 






involving the Facility at all times for which the Seller bears or has accepted risk of loss or has  responsibility  for  providing  insurance.   Coverage  shall  include  loading,  unloading  and  temporary storage (as applicable). Coverage shall be maintained in accordance with prudent  industry practice in all regards with per occurrence deductibles of not more than $50,000 for  physical damage and other terms and conditions acceptable to the Buyer. For avoidance of  doubt,  (i)  this  requirement  is  only  applicable  during  installation  and  is  not  required  to  be  maintained with respect to any Facility after such Facility’s Commencement of Operations  Date, and (ii) this requirement shall not apply to any subcontractor except those engaged to  transport materials owned by Seller during such transit.  Seller shall cause Buyer to be included as additional insured to all insurance policies required in  accordance  with  the  provisions  of  this  Agreement  except  for  worker’s  compensation.   The  required insurance must be written as a primary policy not contributing to or in excess of any  policies carried by Buyer, and each must contain a waiver of subrogation, in form and substance  reasonably satisfactory to Buyer, in favor of Buyer.   Additionally, Seller shall procure, on behalf of Buyer, any insurance coverages with respect to  commercial general liability and excess liability required to be carried by Buyer pursuant to the  NYC HHC PPA pursuant to policies that comply with all requirements set forth in such NYC  HHC PPA.   The insurances contemplated in this clause are primary.  The Parties acknowledge that, if a  claim is made under any of the insurances contemplated in this Agreement, it is their intention  that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement  before  the  insurer’s  obligation to perform is mature, subject to  the  insurer’s later  pursuing  subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of  the  policyholder.   The  general liability  and  umbrella  liability  insurances  required  by  this  agreement shall provide blanket contractual coverage to the full policy limit.  Where applicable,  each of these insurances will:         (a)  be effected with an insurer reasonably acceptable to Buyer;         (b)   contain a waiver of subrogation in favor of Buyer;        (c)   contain deductibles in accordance with prudent industry practice and approved by  Buyer acting reasonably; and        (d)   include a provision that such insurance is primary insurance with respect to the  interests of Buyer and Seller and that any other insurance maintained by Buyer is excess and not  contributory insurance with the insurances required under this Agreement.   Seller shall provide Buyer with evidence of compliance with these insurance requirements  when requested by Buyer from time to time on a reasonable basis.                                     ANNEX B-2  





 






                                                      Annex C                   Capacity Warranty Claim Example Calculation and Amounts Payable                                        Quarterly Performance Warranty Claim Example Calculation                        Assumptions                       Number of Systems                                                      46                        System Capacity                                                       200   kW                        Hours/Day                                                              24   Hours                        Measurement Period                                                     90   Days                        Force Majeure Outage in Period(1)                                        5  Hours                        PPA Customer Outage in Period(1)                                         0  Hours                        Legal/Grid Outage in Period(1)                                           0  Hours                        Battery Solution Outage in Period(1)                                     0  Hours                        Starting Performance Warranty Bank Balance                      3,985,900   kWh                        Quarterly Performance Warranty Analysis                       Minimum kWh(2)                                                      [***]   kWh                      Actual kWh                                                     15,500,160   kWh                       Underperformance (kWh)                                              [***]   kWh                      Performance Warranty Bank Adjustment                      Starting Balance                                                 3,985,900   kWh                      Debit                                                                [***]   kWh                     Ending Balance                                                       [***]   kWh                       Quarterly Performance Warranty Claim?                               NO                        (1)  As defined by “Minimum kWh.”                        (2)  Minimum kWh = ((Measurement Period Days * 24 Hours/Day) - Force Majeure Hours - PPA Customer                            Outage Hours - Legal/Grid Outage Hours – Battery Solution  Outage Hours) * Minimum Power                            Product(3)                        (3)  As calculated per Annex A.                                                        ANNEX C-1  [***] Confidential Treatment Requested 





 






                                   Annual Performance Guaranty Claim Example Calculation                  Assumptions                  Number of Systems                                                               46                   System Capacity                                                                200   kW                   Hours/Day                                                                       24   Hours                   Measurement Period                                                             365   Days                   Force Majeure Outage in Period (1)                                               5   Hours                   PPA Customer Outage in Period(1)                                                 0   Hours                   Legal/Grid Outage in Period(1)                                                   0   Hours                   Battery Solution Outage in Period(1)                                             0   Hours                   Performance Guaranty Payment Rate                                          $[***]    /kWh                  Starting Performance Guaranty Bank Balance                               2,508,000   kWh                   Annual Performance Guaranty Analysis                  Minimum kWh(2)                                                               76,518,700   kWh                  Actual kWh                                                                  [***]    kWh                 Underperformance (kWh)                                                      [***]    kWh                  Performance Guaranty Bank Adjustment                  Starting Balance                                                            2,508,000  kWh                  Debit                                                                       [***]    kWh                 Ending Balance                                                              [***]    kWh                  Performance Guaranty Payment(4)                                                $[***]                Notes:                  (1)  As defined by “Minimum kWh.”                   (2)  Minimum kWh = ((Measurement Period Days * 24 Hours/Day) – Force Majeure Hours – PPA Customer                       Outage  Hours  –  Legal/Grid  Outage  Hours  - Battery  Solution  Outage  Hours)  *  Minimum  Power                       Product(3)                   (3)  As calculated per Annex A.                   (4)  Performance  Guaranty  Payment  =  (absolute  value  of  Performance  Guaranty  Bank  ending  balance)  *                       (Performance  Guaranty  Payment  Rate).   Following  such  payment,  the  Performance  Guaranty  Bank                       balance is increased to zero.                                                    ANNEX C-2   [***] Confidential Treatment Requested 





 






                                 Annex D                                  List of PPAs                         Updated as of: September 26, 2018   1. That certain Amended and Restated Energy Server Use and License Agreement, dated as    of October 27, 2016, by and between Home Depot U.S.A., Inc. and Buyer, as amended by    (a) that certain First Amendment to Amended and Restated Energy Server Use and License    Agreement dated March 28, 2017, (b) that certain Second Amendment to Amended and     Restated Energy Server Use and License Agreement dated January 29, 2018, and (c) that     certain  Third  Amendment  to  Amended  and  Restated  Energy  Server  Use  and  License     Agreement dated September 26, 2018 (the “Home Depot PPA”).   2. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17012, dated     as of June 30, 2016, by and among Kaiser Foundation Hospitals, Kaiser Foundation Health     Plan, Inc., and Buyer.   3. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17013, dated     as of June 30, 2016, by and among Kaiser Foundation Hospitals, Kaiser Foundation Health     Plan, Inc., and Buyer.   4. That  certain  Energy  Server  Use  Agreement,  dated  as  of  September  27,  2016,  by  and     between FedEx Ground Package System, Inc. and Buyer (the “FedEx PPA”).   5. That certain Energy Server Use and License Agreement, dated as of September 30, 2016,     by and between Hoag Memorial Hospital Presbyterian and Buyer.   6. That certain Energy Server Use and License Agreement, dated as of February 15, 2017, by     and between Home Depot U.S.A., Inc. and Buyer.   7. That certain Energy Server Use and License Agreement, dated as of March 14, 2017, by     and between San Diego Community College District and Buyer.   8. That certain Energy System Use Agreement, dated as of March 24, 2017, by and between     AT&T Corp. and Buyer (the “AT&T PPA”).   9. That certain Energy Server Use and License Agreement, dated as of May 31, 2017, by and     between Equinix, Inc. and Buyer, together with the Equinix Indemnity Agreement and the     Equinix Landlord Consents (collectively, the “Equinix PPA”).   10. That certain Energy Server Use and License Agreement, dated as of August 30, 2017, by     and between Intel Corporation and 2017 ESA Project Company, LLC, as assigned to Buyer     pursuant to that certain Assignment and Assumption Agreement, dated as of September     11, 2017, by and between 2017 ESA Project Company, LLC and Buyer.   11. That certain Energy Server Use and License Agreement, dated as of December 28, 2017,     by and between Intel Corporation and Buyer.                                 ANNEX D-1  





 






 12. That certain Energy Services Agreement, dated as of September 29, 2017, by and between     The State University of New York and 2017 ESA Project Company, LLC, as assigned to     Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of April    26, 2018, by and between 2017 ESA Project Company, LLC and Buyer.  13. That  certain  Energy  Server  Use  Agreement,  dated  as  of  November 15,  2017,  by  and    between FedEx Ground Package System, Inc. and 2017 ESA Project Company, LLC, as    assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated    as of June 22, 2018, by and between 2017 ESA Project Company, LLC and Buyer.  14. That certain Energy Services Agreement, dated as of November 30, 2017, by and between    Long  Island  University  and  2017  ESA  Project  Company,  LLC,  as  assigned  to  Buyer    pursuant to that certain Assignment and Assumption Agreement, dated as of June 22, 2018,    by and between 2017 ESA Project Company, LLC and Buyer.  15. That certain Energy Server Use and License Agreement, dated as of November 30, 2017,    by and between New York City Health and Hospitals Corporation and 2017 ESA Project    Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption    Agreement, dated as of June 22, 2018, by and between 2017 ESA Project Company, LLC    and Buyer (the “NYC HHC PPA”).   16. That certain Energy Services Agreement, dated as of June 29, 2018, by and between New     York State Office of Mental Health and 2017 ESA Project Company, LLC, as assigned to     Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of June     30, 2018, by and between 2017 ESA Project Company, LLC and Buyer.   17. That certain Energy Services Agreement, dated as of November 10, 2017, by and between     Agilent Technologies, Inc. and 2017 Fuel Cell Operating Company I, LLC, as assigned to     Buyer  pursuant  to  that  certain  Assignment  and  Assumption  Agreement,  dated  as  of     September  26,  2018,  by  and  between  2017  Fuel  Cell  Operating  Company  I,  LLC  and     Buyer.   18. That certain Energy Services Agreement, dated as of December 8, 2017, by and between     Taylor Fresh Foods, Inc. and 2017 Fuel Cell Operating Company I, LLC, as amended by     that certain First Amendment to Energy Services Agreement, dated as of September 14,     2018, by and between Taylor Fresh Foods, Inc. and 2017 Fuel Cell Operating Company I,     LLC,  as  assigned  to  Buyer  pursuant  to  that  certain  Assignment  and  Assumption     Agreement, dated as of September 26, 2018, by and between 2017 Fuel Cell Operating     Company I, LLC and Buyer.   19. That certain Energy Services Agreement, dated as of March 29, 2018, by and between II-     VI Incorporated and 2017 Fuel Cell Operating Company I, LLC, as assigned to Buyer     pursuant to that certain Assignment and Assumption Agreement, dated as of September     26, 2018, by and between 2017 Fuel Cell Operating Company I, LLC and Buyer.   20. That certain Energy Services Agreement, dated as of September 18, 2018, by and between     CoreSite Real Estate 1656 McCarthy, L.P. and Buyer (the “CoreSite PPA”).                                 ANNEX D-2  





 






                                       Exhibit A                                        Specifications   For the Battery Solution:   Energy storage [***]:  [***] of beginning of life capacity.  A typical Home Depot installation might use  [***] for [***] of beginning of life capacity in order to achieve contract targets of [***].   Power discharge [***]:  [***] per [***]; [***] per [***].  A typical Home Depot installation will have  a [***] discharge capability.   Power charge [***]:  [***] per [***]; [***] per [***].  A typical Home Depot installation will have a  [***] charge capability.   Cabinet dimensions:  The team will work to find the most space efficient solution.  A cabinet which holds  [***] of storage and associated power electronics and air handling would have approximate dimension of:   [***]” in depth; [***]” in width and [***]” in height.    Cabinet environmental rating:  Outdoor rated; [***] C to [***] C.   For the Bloom Systems   System Capacity: Configuration-dependent. Each Facility will be composed of an appropriate number of  Bloom Systems in order to achieve the desired System Capacity.   Electrical Connection: 480 V, 3-phase, 60 Hz   Fuels: Natural Gas, Directed Biogas  Input Fuel Pressure: 10-18 psig (15 psig nominal)  Water: None during normal operation   NOx: < 0.01 lbs/MWh  Sox: Negligible  CO: <0.05 lbs/MWh  VOCs: < 0.02 lbs/MWh   Weight: 14.3 tons  Dimensions (variable layouts): 14'9" x 8'9" x 7' or 29'6" x 4'5" x 7'5"   Temperature Range: -20° to 45° C  Humidity: 0% to 100%   Location: Outdoor   Noise: < 70 dBA @ 6 feet                                          Exhibit A-1     [***] Confidential Treatment Requested 





 






                                   Exhibit B                                  Form of Bill of Sale                                     BILL OF SALE          This BILL OF SALE, dated as of __________ __, 201_ is made by BLOOM ENERGY   CORPORATION, a Delaware corporation (“Seller”), to 2016 ESA PROJECT COMPANY, LLC,   a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Purchase, Use   and Maintenance Agreement, dated as of October 24, 2016, amended and restated as of June 26,   2017, amended and restated a second time as of March 16, 2018, and amended and restated a third   time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise   modified from time to time, the “PUMA”), between Seller and Buyer, in connection with the   transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).            Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the  consideration, and on the terms and conditions, set forth in the PUMA, all of Seller’s rights, title  and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment .          This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and  their respective successors and assigns.            This Bill of Sale shall be governed by, and construed in accordance with, the laws of the   State of California.                                [Signature Page Follows]          [Note to Draft: To be revised as appropriate when used in connection with return of                                 Facilities to Bloom]                                       Exhibit B-1  





 






      IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed  by their respective duly authorized officers as of the date first written above.         SELLER:         BLOOM ENERGY CORPORATION          By:  __________________________        Name:          Title:             BUYER:         2016 ESA PROJECT COMPANY, LLC          By:  __________________________        Name:          Title:                                        Exhibit B-2  





 






Attachment A to Bill of Sale        Purchased System           Exhibit B-3  





 






                                    Exhibit C                                    Seller Deliverables           Seller shall develop a comprehensive design package consisting of drawings generated in    AutoCAD.  Design package to accompany appropriate information necessary to support the design    and equipment specifications.  The drawing package shall consist of the following, as applicable    to the scope of work.           Seller shall submit the items listed below prior to or at the Commencement of Operations:        1. “Issued for Construction Drawing Set” (each of the below delivered, as appropriate and         necessary given site design):            a. Cover sheet            b. Work site plan (work site and general arrangement drawings)           c. Grading and drainage plan           d. Soil erosion and sediment control           e. Foundation plans and details           f. Structural plans, details and elevation           g.  [***]            h. Single-line electrical diagrams            i. Electrical schematic diagrams            j. [***]            k. Network Architecture Drawings            l. Power and control wiring            m. Grounding plans            n. Lightning and surge protection drawings            o. Wiring Diagrams            p. Bloom Equipment Specifications            q. Electrical schematic diagrams            r. [***]            s. I/O list     2. Example screenshot to be delivered by Seller, with details on sample shown below:    [***]                                        Exhibit C-1    [***] Confidential Treatment Requested 





 






 Seller  shall  submit  the  items  listed  below  on  or  before  ninety (90)  days  following  the   Commencement of Operations:        1. Third party vendor drawings ([***] battery specifications and drawings to be provided by        PowerSecure if applicable)     2. Safety Documentation for Bloom Personnel and Subcontractors     3. Final OSHA/Cal-OSHA 300Log (not required to be organized by Site)     4. Final Incident Reports  (to include First Aid logs, Final Root Cause Analysis Reports, and        Final Near Miss Reports)     5. Quality Documentation for Construction activities (if applicable)     6. As-built drawings     7. Permitting documentation   Seller will prepare in individually organized volumes of the Seller Deliverables and deliver to   Buyer for Buyer’s approval two sets of such required manuals.  Seller will prepare and deliver to   Buyer two (2) electronic copies on CDs or USB flash drive, at least one of such copy will be in   native format (if available to Seller) to allow Buyer subsequently to modify or update the same.    Seller shall transfer Seller Deliverables to Buyer and they shall become the sole property of Buyer.                                         Exhibit C-2    [***] Confidential Treatment Requested 





 






                                    Exhibit D                                 Form of Payment Notice     To:   2016 ESA PROJECT COMPANY, LLC (Buyer)           This Payment Notice, dated ________, 201_, is given pursuant to Section 2.4(c) of the    Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION    (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended   and restated a second time as of March 16, 2018, and amended and restated a third time as of   September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified   from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used   in this Payment Notice.          Seller hereby notifies Buyer that, in connection with the Invoice Due Date occurring on   ___________, 201__, Buyer shall be obligated to make Purchase Price payments to Bloom in the   aggregate amount of $__________.           The  Purchase  Price  to  be  paid  by  Buyer  on  the  above-mentioned Invoice  Due  Date  is   comprised of the following amounts:       1) $______ of Purchase Price payments for a Tranche composed of Facilities with aggregate        System  Capacity  __kW,  which  amount  equals  [***]  per  kW  ($[***]/kW)  of  System        Capacity of the Facilities included in such Tranche.      2) $______ of Purchase Price payments in connection with the Shipment of the final Bloom        System  to  be  installed  in  Facilities  with  aggregate  System  Capacity  of  __kW,  which        amount represents [***] per kW ($[***]/kW) of System Capacity of Facilities that have        Shipped and were included in a Tranche for which Buyer has previously made a Purchase        Price payment, plus 100% of the Purchase Price Adder(s) applicable to such Facilities, if        any.      3) $______ of Purchase Price payments in connection with the Shipment of the final Bloom        System  to  be  installed  in  Facilities  with  aggregate  System  Capacity  of  __kW,  which        amount represents [***] per kW ($[***]/kW) f System Capacity of Facilities that have        Shipped  and  were  not  included  in  a  Tranche  for  which  Buyer  has  previously  made  a        Purchase  Price  payment,  plus  100%  of  the  Purchase  Price Adder(s)  applicable  to  such        Facilities, if any.      4) $______ of Purchase Price payments in connection with the Commencement of Operations        of  Facilities  with  aggregate  System  Capacity  of  ___kW,  which  amount  represents,  the        remaining unpaid Purchase Price for such Facilities, plus one hundred percent (100%) of        the Taxes to be paid by Buyer pursuant to Section 2.3(c) for such Facilities.                                      Exhibit D-1    [***] Confidential Treatment Requested 





 






       Included with  this  Payment  Notice  is  supporting  documentation  (i.e.,  Seller’s  Deposit  Milestone  Certificates,  bills  of  lading  and  Seller’s  Certificates  of  Installation)  evidencing  the  achievement of all applicable Milestones achieved by the Tranche and/or Facilities referenced  above.         Seller  hereby  certifies  that  each  of  the  representations  and  warranties  of  Seller  in  the  PUMA is true and correct in all respects as of the date of this Payment Notice.         This Payment Notice may be relied upon by Buyer.   Signed for and on behalf of BLOOM ENERGY CORPORATION     By:    __________________________    Name:   __________________________    Title:   __________________________                                       Exhibit D-2  





 






      Exhibit E   Form of Purchase Order          Exhibit E-1  





 






                                   Exhibit F                       Form of Seller’s Deposit Milestone Certificate    To:   2016 ESA PROJECT COMPANY, LLC (Buyer)          This Deposit Milestone Certificate, dated ________, 201_, is given pursuant to paragraph   (c) of the definition of Deposit Milestone Requirements in the Purchase, Use and Maintenance   Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October  24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of  March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended,  amended and restated, supplemented or otherwise modified from time to time, the PUMA).   Terms defined in the PUMA have the same meaning where used in this Certificate.   This certificate is provided in respect of a Tranche with aggregate System capacity of ______ kW  (the “Subject Tranche”).   Seller hereby certifies that in respect of the Subject Tranche:         (1) Seller, on Buyer’s behalf, has received approval of site plans and single-line drawings  from one or more PPA Customers for Facilities with aggregate System Capacity equal to or greater  than  the  aggregate  System  Capacity  of  such  Subject  Tranche  (and  all  previously-invoiced  Tranches);          (2)  Seller  has  received  all  materials  required  for  the  commencement  of  fabrication  of  Bloom Systems with aggregate System Capacity equal to or greater than the aggregate System  Capacity such Subject Tranche, and all materials required as of such time to allow for completion  of such fabrication in order to achieve Commencement of Operations of such Facilities (and all  previously-invoiced Tranches) within ninety (90) days hereof; and         (3) Each of the representations and warranties of Seller in the PUMA is true and correct in  all respects as of the date of this Seller’s Deposit Milestone Certificate.                                       Exhibit F-1  





 






     This Deposit Milestone Certificate may be relied upon by Buyer.   Signed for and on behalf of BLOOM ENERGY CORPORATION    .................................................................................   By:   ........................................................................   Name:..........................................................................   Title:............................................................................                                      Exhibit F-2  





 






                                   Exhibit G                                Form of Tranche Notice    To:   2016 ESA PROJECT COMPANY, LLC (Buyer)          This  Tranche  Notice,  dated  ________,  201_,  is  given  pursuant  to  Section  2.2  of  the   Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION   (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended  and restated a second time as of March 16, 2018, and amended and restated a third time as of  September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified  from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used  in this Tranche Notice.        Seller  hereby  notifies  Buyer  that  Seller  expects  that  Facilities  with  aggregate  System  Capacity of __kW will be included in a Tranche that Seller reasonably expects will satisfy the  applicable Deposit Milestones in such the [1st / 2nd / 3rd / 4th] Calendar Quarter of 201_.           Seller hereby certifies that, as of the date of this Tranche Notice, no Seller Default has   occurred and is continuing under the PUMA.         This Tranche Notice may be relied upon by Buyer.    Signed for and on behalf of BLOOM ENERGY CORPORATION     By:    __________________________    Name:   __________________________    Title:   __________________________                                       Exhibit G-1  





 






                                  Exhibit H                        Form of Seller’s Certificate of Installation   To:   2016 ESA PROJECT COMPANY, LLC (Buyer)   This  Certificate  is  given  pursuant  to  paragraph  (e)  of  the  definition  of  Commencement  of  Operations in the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY  CORPORATION (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26,  2017, amended and restated a second time as of March 16, 2018, and amended and restated a third  time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise  modified from time to time, the PUMA).   Terms defined in the PUMA have the same meaning where used in this Certificate.   This certificate is provided in respect of the Facility(ies) set forth on Exhibit A hereto.   Seller hereby certifies that in respect of each Facility:   1. Each Bloom System comprising the Facility has been installed, commissioned and tested in    accordance with the Performance Standards and all other requirements of the PUMA;  2. Seller  has  performed  and  successfully  completed  all  necessary  acts  under  the  applicable   Interconnection Agreement (including performance testing) and has obtained permission from    the  applicable  Person  granting  Buyer  permission  to  interconnect  such  Facility  with  the    distribution or transmission facilities of the Transmitting Utility;  3. All  BOF  and  BOF  Work  necessary  for  the  operation  of  the  Facility  has  been  installed,    commissioned  and  tested  in  accordance  with  the  Performance  Standards  and  all  other    requirements of the PUMA; and  4. Each of the representations and warranties of Seller in the PUMA is true and correct in all    respects as of the date of this Seller’s Certificate of Installation.                                     Exhibit H-1  





 






This Certificate may be relied upon by Buyer.   Signed for and on behalf of BLOOM ENERGY CORPORATION    .................................................................................   By:   ........................................................................   Name:..........................................................................   Title:............................................................................                                      Exhibit H-2  





 






                           ATTACHMENT A                          COMPLETED FACILITIES                                   Table 1                                 Facility List    Serial No.            Location of Facility         Unit     System Capacity                                                    Model        (kW-AC)                                   Exhibit H-3  





 






                                Exhibit I                            Assignment Agreements                        Updated as of: September 26, 2018   1. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project    Company and Buyer, dated as of April 26, 2018 2. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project    Company and Buyer, dated as of June 22, 2018. 3. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project    Company and Buyer, dated as of June 30, 2018. 4. That  certain  Assignment  and  Assumption  Agreement,  by  and  between  2017  Fuel  Cell    Operating Company I and Buyer, dated as of September 26, 2018.                                  Exhibit I-1  





 






                                   Exhibit J                             Seller Corporate Safety Plan   Seller will maintain and adhere to a Seller Corporate Safety Plan at all times during the term of  this Agreement. Such plan will be maintained, in writing, at Seller corporate headquarters and  will include, without limitation programs with respect to:      .  Contractor Environmental Health & Safety Program    .  Injury and Illness Prevention Program    .  Heat Illness Prevention Program    .  Emergency Action and Fire Prevention Plan    .  Hazard Communication Program    .  Corporate Electrical Standard – Specific Electrical Safe Work Practices    .  Electrical Safety Awareness    .  Lockout/Tagout    .  Fall Protection Program (Working at Heights)    .  Ladder Safety Program    .  Powered Industrial Trucks (PIT)    .  Hoist Safety Program    .  Personal Protective Equipment (PPE)    .  Respiratory Protection Program    .  Hearing Conservation Program    .  Hand and/or Powered Tools Safety Program    .  Hot Work Process    .  First Aid / CPR Program                                     Exhibit J-1  





 






                                  Exhibit K                              Subcontractor Quality Plan         Seller will adhere to the following standards and processes as applicable when engaging  subcontractors for performance under this Agreement.       .  General contractors will be subject to the terms and conditions set forth in The American       Institute of Architects Document A107 – 2007 as amended in certain cases    .  General contractors are required to complete a Bloom Energy Contractor Qualification       Training Program    .  General contractor superintendents and foremen must be certified and qualified by Seller       to be on site    .  Standard safety protocols will be observed at all times:          .  Site superintendents are OSHA30 certified          .  Seller superintendents ensure general contractors follow all local and state OSHA             and owner requirements          .  Confirmation of “Injury and Illness Prevention Program”          .  Seller included in the ISN program – 3rd party safety evaluation    .  A project superintendent assigned by Seller will review subcontractor work according to       a standard site verification check list    .  Contractors will submit Contractor Quality Guarantees for each site providing written       verification of points of assurance including torques per site, Megger testing and line       flushing    .  Prestart verification conducted for all sites to review and confirm the quality of       subcontractor work    .  Prior to commencement of operations, Seller conducts an “OK to Start” meeting during       which subcontractor quality of work is reviewed and confirmed as resolved    .  All incidents are logged in a database and reviewed on an ongoing basis by Seller quality       management as well as at the OK to Start meeting    .  Quarterly business reviews conducted with general contractors to formally review       incident data and mitigate process and workmanship issues.                                     Exhibit K-1  





 






                                   Exhibit L                                Projected Tolling Rates   [***] PPA       Projected Tolling           Rates   Period*  $/kWh     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]                                      Exhibit L-1    [***] Confidential Treatment Requested 





 






   [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]     [***]         [***]    Period 1 commences on the Commencement of Operations Date of the applicable Facility and   extends until (and including) the first December 31 or June 30 to occur following the six-month   anniversary of such Commencement of Operations Date (e.g., for a Facility with a Commencement   of  Operations  Date  occurring  on  September  15,  2018,  Period  1  extends  until  June  30,  2019).   Subsequent Periods follow, in each case extending until (and including) the subsequent December   31 or June 30.                                       Exhibit L-2   [***] Confidential Treatment Requested 





 






                                  Exhibit M                          Parties’ Managers and Service Fees   Seller’s Initial Operations Manager:  [***]   Buyer’s Initial Buyer Managers: [***]       [***]   Service Fees:                        Calendar Months since           Rate                    Commencement of Operations        ($/kW)                      for the applicable Facility                     [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                    [***]                              [***]                                      Exhibit M-1     [***] Confidential Treatment Requested 





 






In addition, Services Fees for such Facility shall be increased by an amount equal to [***] of rated  capacity of the Battery Solution if such Facility includes a Battery Solution, and [***].   In addition, from and after the [***] calendar month after Commencement of Operations for a  Facility, Services Fees for such Facility shall be increased by an amount equal to:   -   [***] per AOM per calendar month;   -  [***] of System Capacity per calendar month if such Facility includes a Low-Pressure Gas     Booster;    -   [***] per UPM per calendar month if such Facility [***];   -  [***] per UPM per calendar month if such Facility [***].                                      Exhibit M-2    [***] Confidential Treatment Requested 





 






                                 SCHEDULE 3.3                        DESIGN AND INSTALLATIONS PROCEDURES         Seller will perform the following activities in connection with the design and installation  of  each  Facility,  to  the  extent  necessary  to  cause  such  Facility  to  achieve  Commencement  of  Operations:      .  Initial site visits and studies to assess site suitability, including but not limited to due       diligence research with local Authorities Having Jurisdiction (AHJs) and utilities, site       load validation, and utility locates.  When necessary, title reports may be pulled, gas       composition may be tested, and geotechnical studies may also be done.    .  Produce a complete set of construction drawings, either internally or in conjunction with       an external design firm, in accordance with: local, state, and national codes; local electric       and gas utility requirements; and site-specific or host customer requirements.    .  Procure all necessary permits and/or approvals as required by the local AHJs, including      but not limited to Planning, Building, and Fire Departments.   .  Secure technical approval to interconnect with the local electric utility, and coordinate the       electric interconnection agreement between the host customer and the local utility.   .  Engage the local gas utility to design the gas interconnection approach, and coordinate      the gas contract for gas delivery to the Bloom system between the host customer and the      local utility.   .  Secure a general contractor to build the site as designed, obtain final building department       sign-off, and pass any other required inspections.  Provide Bloom Energy-trained site       supervision at key milestones during the construction process to ensure smooth       inspections and a positive host customer experience.    .  Perform system commissioning once construction is complete and inspections are passed,       ensuring the systems operate as intended and reach full power.  Remedy any issues      preventing full power prior to turning operation over to Bloom’s Service team.   .  Act as the interface with the host customer, securing all necessary design approvals and      site access permissions, as well as coordinating construction schedules.  Ensure primary      personnel responsible for interfacing with Bloom’s system are educated in safety      procedures.  Deliver customer manuals and emergency procedures to the customer upon      project completion, as well as any other close-out documentation required by the contract                                    Schedule 3.3  





 






                                  SCHEDULE 3.4                              COMMISSIONING PROCEDURES          Seller will perform the following activities in connection with the commissioning of each   Facility, to the extent necessary to cause such Facility to achieve Commencement of Operations:      .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]    .  [***]          .  [***]          .  [***]          .  [***]                                     Schedule 3.4   [***] Confidential Treatment Requested 





 






                                 SCHEDULE 4.2                      OPERATION AND MAINTENANCE PROCEDURES      Seller will perform the following operation and maintenance activities for each Facility, to the  extent necessary to cause such Facility to perform in accordance with the Warranty Specifications:      .  Annual maintenance activities:          .  Check Surge Protection Device and replace as necessary          .  Replace main blower filter element          .  Replace AC unit filter element if applicable          .  Replace auxiliary blower filter element          .  Remove any debris and vacuum inside of each cabinet          .  Remove any debris from the exterior of cabinets          .  Check all FCM hotbox enclosures for any leaking or cracks          .  Replace door filters          .  NG conditioning canister replacement    .  Site obligations:          .  An e-mail announcement of a service appointment will be sent to address(es)             specified by the client informing of a service visit in advance of a service visit          .  Field Service personnel will sign in at a security office as required by client          .  Field Service personnel will safely and securely maintain and repair the systems             as needed in accordance with our established and released procedures          .  Bloom HR and EH&S will work with clients to fulfill requirements for             certification of drug testing, training, and other Environmental Health & Safety             (EH&S) procedures    .  Site visit protocols:          .  Works with customers and Product Development to resolve issues          .  Provides detailed documentation for each maintenance element performed          .  Inspection of installed equipment to ensure peak performance          .  Inspection of all components to ensure proper operation within product and             environmental specifications          .  Clearly and professionally interact with customer regarding status of site visits,             performance of their systems and general fuel cell education    .  Spare Parts          .  Bloom Energy Product Support maintains a list of all spare parts including field             replaceable units (FRUs) and consumables for each of its commercial products         .  Spare parts are stocked in localized third party logistics depots in each service            zone                                    Schedule 4.2-1  





 






      .  The most common and most critical parts are stocked in each local depot and          replenished on a weekly schedule       .  Parts not stocked in localized depots are dispatched from our Milpitas, CA          warehouse via FedEx or other carriers and couriers .  Failure Response Protocol:            RMCC          RMCC Alarm   Alarm   troubleshooting  Field Services                                             Product Support         Problem                           Problem resolution at the           Remote Resolution of the customer site                   Resolution           problem                           Handles complex issues                                             and  escalations          and                            Confirm optimum           FS dispatch      performance                            Performance                                             Handles site related issues Improvement           Performance Monitoring Close Service Requests          and improvement                   Escalations to Engineering                                             and product improvements   .  Emergency Response Protocol:       .  Contact lists of BE personnel to be contacted during normal business hours and          during off hours (24-7-365 emergency escalation path) are provided for each          region where Energy Servers are located in order to remedy situations posing a          risk to persons or property       .  Remote shutdown from Bloom RMCC if required       .  Emergency power off button provided onsite .  Remote monitoring:       .  24/7/365 performance monitoring and control of fleet       .  1st level troubleshooting       .  Cross-functional interface with engineering, software, controls, quality       .  Optimize performance       .  Support new customer site start-ups       .  Customer performance analysis – daily .  Standards Compliance:       .  Complies with Rule 21 interconnection       .  ANSI/CSA FC 1: Stationary Fuel Cell Power Systems – Safety       .  IEEE 1547 – Standard for Interconnecting Distributed Resources with Electric          Power Systems       .  NFPA 853 – The Standard for Installation of Stationary Fuel Cell Power Systems                                Schedule 4.2-2  





 






      .  NFPA 70 – The National Electrical Code       .  NFPA 54 – The National Fuel Gas Code .  Subcontracted Services. The following may in some cases be performed by    subcontractors:       .  Water DI system replenishment       .  STS and transfer switch maintenance and repair       .  Some annual maintenance and upgrade work       .  Filter delivery, replacement, removal       .  High Voltage transformer and switchgear maintenance       .  Circuit breaker and similar maintenance       .  Battery replacement       .  Some fuel cell module performance upgrades       .  NG conditioning canister replacement .  Management Staff:       .  Customer Installations Group (CIG) – Turnkey design, engineering, procurement,          permitting and installation       .  Services – Commissioning, operations and monitoring of servers       .  Customer Experience – Interface with customer       .  PPA Operations – Certain administrative duties .  All Energy Servers are instrumented to securely record over 1000 data points per server    and stored in a Data Historian that resides in a Secure Co-located Data Center and    Backed Up for data recovery .  CIG and Service employees are subject to drug tests, background checks and other    screening protocols based on customer site requirements .  Bloom Energy maintains a Code of Safe Practices and ensures that copies are provided to    all applicable field service technicians and includes:       .  Injury and illness prevention program       .  Required Personal Protection Equipment (PPE)       .  Corporate EH&S Standard       .  Proper use of Powered Industrial Trucks       .  Contracted Crane Operations       .  Ladder safety program       .  Electrical Safety and Lock-Out Tag-Out (LOTO)       .  Fall protection       .  First Aid/CPR program       .  Contractor EH&S program       .  Bloom Energy Safety Commitment                                 Schedule 4.2-3  





 






                              .     SCHEDULE 4.6                        APPROVED MAJOR SERVICE PROVIDERS   Core States Group / CoreStates, Inc.  3401 Centre Lake Drive Suite 330  Ontario, CA 91761  909.467.8907  www.core-eng.com   Newco Construction of America, Inc.  17830 Front Street  Mount Dora, FL  32757  352-735-3877  www.newcoconstruction.com   PacifiCore Construction  1342 Bell Ave Suite 3A  Tustin, CA 91780  657-859-40505  www.pacificoreconstruction.com   Rubicon Professional Services  107 Tindall Road Suite #11  Middletown, NJ  07748  732-832-2975  www.RubiconPS.com                                     Schedule 4.6