Common use of Record-Keeping Documentation; Audit Rights Clause in Contracts

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 successorregulations 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 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; and (vii) 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 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.

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 successorregulations successor Table of Contents 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 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; and (vii) 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 Table of Contents 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 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.

Record-Keeping Documentation; Audit Rights. (a) Seller Operator shall ensure that records concerning Seller’s EPC Services and 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 successorregulations successor regulations to the extent applicable to SellerOperator. Such records shall include, but not be limited to, include the following: (i) records and records, reports, or other documentation in respect reasonably requested by Owner to support an ITC eligibility determination, subject to Operator’s reasonable concerns regarding protection of each Facility’s satisfaction highly confidential information and/or trade secrets 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”Operator; (ii) a separate “Maintenance Specification Log” for each Facility in a paper or electronic format (with entries made for each inspection, 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 which the Maintenance Specification Log shall be submitted, in paper or electronic format, made available for audit by Owner not more than once per calendar quarter and Operator shall make its Representatives reasonably available to Buyer along with the corresponding Quarterly Reportsanswer any questions Owner may have regarding any entry(ies) therein; (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 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 Owner within fifteen twenty (1520) 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 comprising the PortfolioFacility, DM_US 164459510-10.107145.0012 and (B) total output (in kWh) of the PortfolioProject and each Facility, in each case for each calendar month in the preceding month; (viv) records and documentation shall be maintained by Operator in respect of the Project or each Facility or the Portfolioeach Tranche, 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; (viv) any other records, reports, or other documentation related to the production and sale of energy from the Facilities or that Buyer Owner is required to maintain in respect of any Facility under any the Tariff and PJM Market Rules; (vi) subject to Operator’s reasonable concerns regarding protection of its highly confidential information and/or trade secrets, records documenting the calibration of tooling, equipment and components consistent with the requirements of Section 3.2(b), including data used for calibration; (vii) records and data in the form and type listed on Schedule 5.1(a)(vii); (viii) records and documentation required to be maintained under Legal Requirements applicable PPAto the Facility Services, and all records and data that must be timely produced and turned over to (A) DPL pursuant the Tariff (including without limitation, the Heat Rate calculations as set forth in Tariff Section C., and monthly documentation of PJM Revenues as set forth in Tariff Section H.) and the DPL Agreements; and (viiix) any other records, reports, or other documentation reasonably requested by BuyerOwner, including as necessary subject to support any ITC eligibility determination with respect to a Facility. Seller agrees to use commercially Operator’s reasonable efforts to promptly provide such documentation to Buyer, and shall provide a reasonable explanation for any inability to provide such documentationconcerns regarding protection of highly confidential information and/or trade secrets of Operator. (b) All such records required to be created and maintained pursuant to Section 6.1(a5.1(a) shall (i) be kept available at SellerOperator’s office and made available for BuyerOwner’s inspection upon request at all reasonable times, and (ii) be retained for the relevant retention period provided under Legal Requirements, including in 18 C.F.R. § 368.3 or any successor regulation as amended from time, to the extent applicable to SellerOperator, or any longer period required under any PPAthe Tariff, or by DPL or PJM. Any documentation prepared by Seller Operator during the Term for the purposes of this Agreement shall be directly prepared for BuyerOwner’s benefit and immediately become BuyerOwner’s property. Any such documentation shall be stored by Seller Operator on behalf of Buyer Owner until its final delivery to BuyerOwner. Seller Operator may retain a copy of all records related to each Facility for future analysis. (c) Buyer Owner 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 SellerOperator, to examine such records during regular business hours in the location(s) where such DM_US 164459510-10.107145.0012 records are maintained by Seller Operator for the purposes of verifying BuyerOperator’s compliance with its obligations hereunder, including the accuracy of Monthly Reports and SellerOperator’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)Specifications. Buyer Owner shall pay the cost of the audit unless the results of the audit reveal that the Minimum kWh or Actual kWh reported by Buyer Owner in respect of the Portfolio Project 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 Operator shall pay the audit costs.

Record-Keeping Documentation; Audit Rights. (a) Seller Operator shall ensure that records concerning Seller’s EPC Services and 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 successorregulations successor regulations to the extent applicable to SellerOperator. Such records shall include, but not be limited to, include the following: (i) records and any records, reports, or other documentation in reasonably requested by Owner to support an ITC eligibility determination with respect of each to a Facility’s satisfaction of each Milestone, including records and . Operator agrees to use commercially reasonable efforts to promptly provide such documentation regarding the shipment of Bloom Systems and BOF, the completion of BOF Work, the achievement of Commencement of Operationsto Owner, and the fact and date(s) shall provide a reasonable explanation for any inability to provide such Facility has achieved each of the four separate criteria set forth the definition of “Placed in Service”documentation; (ii) a separate “Maintenance Specification Log” for each Facility in a paper or electronic format (with entries made for each inspection, 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 highly confidential information and/or trade secrets, a copy of which the Maintenance Specification Log shall be submitted, in paper or electronic format, made available for audit by Owner not more than once per calendar quarter and Operator shall make its Representatives reasonably available to Buyer along with the corresponding Quarterly Reportsanswer any questions Owner may have regarding any entry(ies) therein; (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 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 Owner within fifteen twenty (1520) 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 Portfolio and each Facility comprising the PortfolioFacility, and (B) total output (in kWh) of the PortfolioPortfolio and each Facility, in each case for each calendar month in the preceding month; (viv) records and documentation shall be maintained by Operator in respect of the Project, each Facility Facility, or the a 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; (viv) any other records, reports, or other documentation related to the production and sale of energy from the Facilities or that Buyer Owner is required to maintain in respect of any Facility under any the Tariff and PJM Market Rules; (vi) subject to Operator’s reasonable concerns regarding protection of highly confidential information and/or trade secrets, records documenting the calibration of tooling, equipment and components consistent with the requirements of Section 3.2(b), including data used for calibration; (vii) records and data in the form and type listed on Schedule 5.1(a)(vii); (viii) records and documentation required to be maintained under Legal Requirements applicable PPAto the Facility Services, and all records and data that must be timely produced and turned over to (A) DPL pursuant the Tariff (including without limitation, the Heat Rate calculations as set forth in Tariff Section C., and monthly documentation of PJM Revenues as set forth in Tariff Section H.) and the DPL Agreements; and (viiix) any other records, reports, or other documentation reasonably requested by Buyer, including as necessary to support any ITC eligibility determination with respect to a FacilityOwner. Seller Operator agrees to use commercially reasonable efforts to promptly provide such documentation to BuyerOwner, 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(a5.1(a) shall (i) be kept available at SellerOperator’s office and made available for BuyerOwner’s inspection upon request at all reasonable times, and (ii) be retained for the relevant retention period provided under Legal Requirements, including in 18 C.F.R. § 368.3 or any successor regulation as amended from time, to the extent applicable to SellerOperator, or any longer period required under any PPAthe Tariff, or by DPL or PJM. Any documentation prepared by Seller Operator during the Term for the purposes of this Agreement shall be directly prepared for BuyerOwner’s benefit and immediately become BuyerOwner’s property. Any such documentation shall be stored by Seller Operator on behalf of Buyer Owner until its final delivery to BuyerOwner. Seller Operator may retain a copy of all records related to each Facility for future analysis. (c) Buyer Owner 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 SellerOperator, to examine such records during regular business hours in the location(s) where such records are maintained by Seller Operator for the purposes of verifying BuyerOperator’s compliance with its obligations hereunder, including the accuracy of Monthly Reports and SellerOperator’s calculations in respect of Warranty Specifications and applicable PPA WarrantiesSpecifications; provided, however, that such records may be audited only once under this Section 6.1(c5.1(c). Buyer Owner shall pay the cost of the audit unless the results of the audit reveal that the Minimum kWh or Actual kWh reported by Buyer Owner 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 Operator shall pay the audit costs.

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 successorregulations 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 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; and (vii) 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.50 (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 until its final delivery to Buyer. Seller may retain a copy of all records related to each Facility for future analysis.51 (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.