AND EXCLUSIVE REMEDY, AND OPERATOR'S SOLE AND
EXCLUSIVE LIABILITY, FOR THE FAILURE OF ANY BLOOM SYSTEM OR EITHER TRANCHE, AS
APPLICABLE, TO PERFORM IN ACCORDANCE WITH THE WARRANTY SPECIFICATIONS.
Section 2.9
Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 10.2, ARTICLE III, ARTICLE VII AND THIS ARTICLE IV, THE
FACILITY SERVICES ARE PROVIDED "AS IS, WHERE IS," AND OPERATOR 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
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PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE FACILITIES
(PROVIDED, THAT THE FOREGOING DISCLAIMER SHALL NOT NEGATE OR DISCLAIM ANY
REPRESENTATIONS OR WARRANTIES PROVIDED UNDER ANY OF THE OTHER TRANSACTION
DOCUMENTS). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION
10.2, ARTICLE III, ARTICLE VII, THIS ARTICLE IV, THE PHASE 1 CAPEX AGREEMENT AND
THE PHASE 2 CAPEX AGREEMENT, OPERATOR 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. FOR THE AVOIDANCE OF DOUBT, NOTHING CONTAINED IN
THIS SECTION 4.10 SHALL EXCUSE OPERATOR FROM ITS OBLIGATION TO INDEMNIFY OWNER
PURSUANT TO ARTICLE XII.
ARTICLE III.
RECORDS AND AUDITS
Section 3.1
Record-Keeping Documentation; Audit Rights.
(a)
Operator shall ensure that records concerning the 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 Operator. Such records shall include the
following:
(i)
records, reports, or other documentation reasonably requested by Owner to
support an ITC eligibility determination, subject to Operator's reasonable
concerns regarding protection of highly confidential information and/or trade
secrets of Operator;
(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), repair, replacement or servicing of
components, and reportable observations made by Operator's Service Technicians);
subject to Operator's reasonable concerns regarding protection of its highly
confidential information and/or trade secrets, a copy of the Maintenance
Specification Log shall be made available for audit by Owner not more than once
per calendar quarter and Operator shall make its Representatives reasonably
available to answer any questions Owner may have regarding any entry(ies)
therein;
(iii)
a monthly report submitted to Owner within twenty (20) 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 the Project and each
Facility,
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and (B) total output (in kWh) of the Project and each Facility, in each case for
each calendar month in the preceding month;
(iv)
records and documentation shall be maintained by Operator in respect of
the Project