EQUITY CAPITAL CONTRIBUTION AGREEMENT by and among CLEAN TECHNOLOGIES 2014, LLC and EXELON GENERATION COMPANY, LLC JULY 18, 2014

[***] Certain confidential information contain in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.22

EXECUTION VERSION

EQUITY CAPITAL CONTRIBUTION AGREEMENT

by and among

CLEAN TECHNOLOGIES 2014, LLC

and

EXELON GENERATION COMPANY, LLC JULY 18, 2014

TABLE OF CONTENTS


		Page

ARTICLE ONE DEFINITIONS AND PRINCIPLES OF INTERPRETATION			1

1.1.	Definitions		1
1.2.	Rules of Interpretation		10

ARTICLE TWO EQUITY CAPITAL CONTRIBUTIONS			11

2.1.	Execution Date		11
2.2.	Contributions		11
2.3.	Execution of LLC Agreement		12
2.4.	Use of Funding Date Proceeds		12
2.5.	Final List of Facilities		13

ARTICLE THREE REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY			13

3.1.	Organization and Good Standing		13
3.2.	Authorization, Execution and Enforceability		13
3.3.	No Violation		14
3.4.	Subsidiaries; Non-Related Liabilities		14
3.5.	Members of the Company; Additional Membership Interests		14
3.6.	Warranty of Title; Personal Property		15
3.7.	Facilities; Governmental Approvals		15
3.8.	Intellectual Property		15
3.9.	Employees		15
3.10.	Brokers		16
3.11.	Consents and Approvals		16
3.12.	Compliance with Applicable Law		16
3.13.	Litigation		16
3.14.	Contracts		16
3.15.	Default		17
3.16.	Environmental Matters		17
3.17.	Casualty Defect		17
3.18.	Real Property		17
3.19.	PUHCA and FPA Status		17
3.20.	Affiliate Transactions		18
3.21.	Information		18
3.22.	Insurance		18
3.23.	State Regulation		18
3.24.	Taxes		18
3.25.	Tax Representations		19
3.26.	Bankruptcy		20
3.27.	Executive Order 13224 and the Patriot Act		20

TABLE OF CONTENTS

(continued)


		Page

3.28.	Facility Costs		20
3.29.	Facility Purchase Conditions		20
3.30.	Financial Statements		21

ARTICLE FOUR REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER			21

4.1.	Organization and Good Standing		21
4.2.	Authorization, Execution and Enforceability		21
4.3.	No Violation		21
4.4.	Brokers		21
4.5.	Consents and Approvals		22
4.6.	Litigation		22
4.7.	United States Person		22
4.8.	Disqualified Person		22
4.9.	Ownership		22
4.10.	No Options		22
4.11.	Compliance with Law		22
4.12.	Fees		23

ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR			23

5.1.	Organization and Good Standing		23
5.2.	Authorization, Execution and Enforceability		23
5.3.	No Violation		23
5.4.	Consents and Approvals		24
5.5.	Litigation		24
5.6.	Investment Intent; Unregistered Securities		24
5.7.	Accredited Investor		24
5.8.	Brokers		24
5.9.	United States Person		25
5.10.	[Intentionally Left Blank		25
5.11.	Disqualified Person		25
5.12.	Related Party		25
5.13.	Compliance with ERISA		25
5.14.	No Other Representations		26

ARTICLE SIX CONDITIONS PRECEDENT			26

6.1.	Execution Date Conditions Precedent		26
6.2.	Funding Date Conditions Precedent		27


ARTICLE SEVEN GENERAL PROVISIONS		30

7.1.	Notices	30
7.2.	Survival of Warranties	31
7.3.	Indemnity	31
7.4.	Limitation on Liability	31
7.5.	Exclusivity	32
7.6.	No Third Party Beneficiaries	32
7.7.	Amendment and Waiver	32
7.8.	Binding Nature; Assignment	33
7.9.	Governing Law	33
7.10.	Jurisdiction; Service of Process	33
7.11.	Counterparts	33
7.12.	Headings	33
7.13.	Severability	33
7.14.	Entire Agreement	34
7.15.	No Solicitation	34
7.16.	WAIVER OF JURY TRIAL	34
7.17.	Confidentiality	34
7.18.	Further Assurances	36

LIST OF SCHEDULES AND ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

SCHEDULES


Schedule A		Bloom Member Contribution

Schedule B		Investor Contribution

ANNEXES


Annex 1		Reserved

Annex 2		Base Case Model

Annex 3		Insurance Requirements

Annex 4		“Knowledge” Persons

Annex 5		Third Party Consents and Approvals

Annex 6		Form of Company LLC Agreement

Annex 7		Form of Independent Engineer Use of Work Product Agreement

Annex 8		Affiliate Transactions

Annex 9		Tax Matters

Annex 10		Forms of Financing Documents

Annex 11		Forms of Principal Facility Documents

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This EQUITY CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”) dated as of July 18, 2014 (the “Execution Date”) entered into by and among Clean Technologies 2014, LLC, a Delaware limited liability company (the “Bloom Member”), on the one hand, and Exelon Generation Company, LLC, a Pennsylvania limited liability company (together with its permitted successors and assigns, the “Investor”), on the other hand.

PRELIMINARY STATEMENTS:

1. 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into an Amended and Restated Purchase Use and Maintenance Agreement with Bloom Energy Corporation, a Delaware corporation (“Seller”), dated as of July 18, 2014 (the “A&R PUMA”), pursuant to which the Facility Company will purchase, subject to the terms and conditions set forth therein, on-site fuel cell power generating systems (each a “System”) with an aggregate System Capacity (as defined in the A&R PUMA) of up to 20.95 MW, to be installed, together with the relevant “BOF” (as defined in the A&R PUMA), on each relevant “Site” (as defined in the A&R PUMA) located in California, Connecticut, New Jersey and New York (each System together with the relevant BOF at a Site, a “Facility”).

2. 2014 ESA HoldCo, LLC, a Delaware limited liability company (the “Company”), wholly-owns the Facility Company.

3. The Investor desires to make capital contributions to the Company, and the Bloom Member and the Facility Company desire that the Investor makes such capital contributions, in the manner and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein and intending to be legally bound hereby, the Parties (as defined herein) agree as follows:

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

1.1. Definitions. The following capitalized terms shall have the respective meanings set forth below:

“A&R PUMA” has the meaning set forth in the Preliminary Statements.

“Administrator” means Bloom Energy Corporation, or any other Person who may serve as administrator from time to time under the ASA.

“Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by or under common control with such Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise. Without limiting the

foregoing, any Person shall be deemed to be an Affiliate of any specified Person if such Person owns more than 50% of the voting securities of the specified Person, if the specified Person owns more than 50% of the voting securities of such Person, or if more than 50% of the voting securities of the specified Person and such Person are under common control.

“Agreement” has the meaning set forth in the Preamble hereto.

“Allocable Percentage” with respect to each Party has the meaning given in Section 2.2(c)(ii).

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“ASA” means the Administrative Services Agreement, dated as of July 18, 2014, by and among the Administrator, the Company and the Facility Company.

“Assets” means, with respect to any Person, all right, title and interest of such Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Governmental Approvals, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

“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 Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

“Base Case Model” means the financial model attached hereto as Annex 2, as may be revised from time to time pursuant to this Agreement.

“Bloom Entities” means the Bloom Member, the Company, the Facility Company, the Seller and the Administrator.

“Bloom Guarantee” means that certain limited guaranty issued by the Bloom Guarantor in favor of the Investor, dated as of the date hereof.

“Bloom Guarantor” means Bloom Energy Corporation, a Delaware corporation.

“Bloom Member” has the meaning set forth in the Preamble hereto.

“Bloom Member Contribution” means the amount set forth in Schedule A.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in San Francisco or New York City.

“Casualty Defect” means any destruction by fire, explosion or other casualty or any taking, or pending taking, in condemnation or under the right of eminent domain, of a Facility or any portion thereof, that constitutes, or could reasonably be expected to constitute, a Material Adverse Effect with respect to such Facility.

“Class A Member” has the meaning specified in the Company LLC Agreement.

“Class A Units” has the meaning specified in the Company LLC Agreement.

“Class B Units” has the meaning specified in the Company LLC Agreement.

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

“Commencement of Operations” has the meaning specified in the A&R PUMA.

“Company” has the meaning specified in the Preliminary Statements hereto.

“Company LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of the Company, entered into on or before the initial Funding Date, substantially in the form attached hereto as Annex 6.

“Disqualified Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Code Section 168(h)(2)(E) and any tax- exempt controlled entity within the meaning of Code Section 168(h)(6)(F)(iii) if such entity has not made the election provided in Code Section 168(h)(6)(F)(ii)), (c) any Person who is not a United States Person, (d) any Person ineligible for the ITC in whole or in part pursuant to Code Section 50 and the Treasury regulations thereunder, (e) any Indian tribal government described in Section 7701(a)(40) of the Code, or (f) any partnership or other pass-through entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization or entity described in clauses (a)-(f); provided, however, that any such Person described in clauses (a) – (f) shall not be considered a Disqualified Person to the extent that (i) the exception under Code Section 168(h)(1)(D) applies with respect to the income from the Facility Company for that Person, (ii) the Person is described within clause (c) of this definition, and the exception under Code Section 168(h)(2)(B)(i) applies with respect to the income from the Facility Company for that Person, or (iii) the Person’s ownership of an Asset for federal income tax purposes, would not result in either the loss, disallowance, reduction or recapture of the ITC or application of Code sections 168(g) or 168(h).

“Electronic Data Room” means the electronic dataroom known as “Project Bloom PPA IV” established by the Bloom Member and made available to the Investor.

“Encumbrance” means any lien (statutory or otherwise), mortgage, deed of trust, claim, option, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, xxxxxx or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

“Environmental Claim” means any demand, order, suit, action or proceeding before any Governmental Authority or arbitral body, or any claim, in each such case, brought or made by a third party, relating in any way to any Environmental Law or Environmental Permit.

“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Environmental Permits” means all licenses, approvals, consents, permits and other authorizations or registrations required under all Environmental Laws.

“Equity Capital Contributions” means the capital contributions provided to be made pursuant to Article Two.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means, with respect to any Party or the Company, any Person (whether or not incorporated) which is under common control with such Party or the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with such Party or the Company under section 414 of the Code.

“Execution Date” has the meaning provided in the Preamble hereto.

“Execution Date Conditions Precedent” has the meaning set forth in Section 6.1.

“Executive Order 13224” has the meaning set forth in Section 3.27.

“Facility” has the meaning specified in the Preliminary Statements hereto.

“Facility Company” has the meaning specified in the Preliminary Statements hereto.

“Facility Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Facility Company, dated as of the date hereof.

“Facility Costs” means, with respect to a Facility, without duplication, the costs (other than Transaction Expenses) incurred by the Facility Company or the Company in connection with the acquisition, ownership, financing, leasing, occupation, construction, design, equipping,

installation, testing, start-up, initial operation, and commissioning of such Facility, to the extent set forth in the Base Case Model, including: (a) all amounts payable to third parties under the Principal Facility Documents, (b) all payments required to be made to the interconnection utility and Governmental Authorities, (c) all out-of-pocket fees and expenses of the Facility Company’s consultants, appraisers and engineers, (d) the interest, fees and expenses owing to the Facility Lender under the Financing Documents and (e) all out-of-pocket fees and expenses of the Facility Company’s counsel.

“Facility Entities” means the Company and the Facility Company.

“Facility Lender” means each note purchaser party to the Note Purchase Agreement and the collateral agent for the note purchasers.

“Facility Purchase Conditions” means, with respect to a Facility, that the Facility has been delivered to the applicable Site but has not been Placed in Service, at least in part because (a) the Facility has not been synchronized onto the electric distribution and transmission system of the applicable Transmitting Utility, (b) the critical tests necessary for the proper operation of the Facility have not been completed, (c) the Facility has not commenced regular, continuous, daily operation, and (d) the Facility has generated no revenue.

“FERC” means the Federal Energy Regulatory Commission.

“Financing Documents” means the Note Purchase Agreement, security agreement, pledge agreement, depositary agreement and any other material agreement entered into in connection therewith between the Facility Company and the Facility Lender, substantially in the forms attached hereto as Annex 10, or as otherwise approved by the Investor, pursuant to which the Facility Lender provides senior secured debt financing to the Facility Company.

“Fitch” means Fitch Ratings, Inc., Fitch Ratings Ltd. and its subsidiaries.

“Flow of Funds” means, with respect to each Funding Date, the funding memorandum prepared by the Bloom Member with respect to such date, setting forth in detail, all sources and uses of funds to be received and paid on such date (including payment of the Transaction Expenses due on or about such date), including the exact amounts to be paid on such date and the Persons (and the account information related thereto) to whom such amounts are to be paid, which memorandum, in form and substance, shall be reasonably acceptable to the Investor.

“FPA” means the Federal Power Act, as amended, 16 U.S.C. §§ 791a et seq.

“Funding Date” means a Regular Funding Date or a Special Funding Date.

“Funding Date Deadline” means September 30, 2015.

“Funding Date Deadline Capital Adjustment” has the meaning given in Section 2.2(c)(ii).

“Governmental Approval” means all permits, licenses, approvals and authorizations of any Governmental Authority.

“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, Taxing Authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Government Official” has the meaning set forth in Section 4.11.

“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Indemnified Party” has the meaning set forth in Section 7.3

“Indemnifying Party” has the meaning set forth in Section 7.3

“Independent Engineer” means Leidos Engineering, LLC.

“Independent Engineer Report” means the report of the Independent Engineer delivered to the Investor on the Execution Date.

“Initial Investor Contribution Amount” means, with respect to any Tranche, an amount equal to [***] of the anticipated Purchase Price (as defined in the A&R PUMA) with respect to the Facilities in such Tranche.

“Insurance Consultant” means Xxxxx-XxXxxx, LLC.

“Insurance Report” means a letter from the Insurance Consultant delivered to the Investor on the Execution Date which confirms that the insurance coverages for both the construction and operation periods of the Facility comply with the insurance requirements described in Annex 3.

“Interconnection Agreement” has the meaning set forth in the A&R PUMA.

[***]

“Investment Documents” means this Agreement, Bloom Guarantee, the A&R PUMA, the Company LLC Agreement, the Facility Company LLC Agreement, the ASA and the Interparty Agreement.

“Investor” has the meaning set forth in the Preamble hereto.

“Investor Contribution” means the amount set forth on Schedule B.

“Investor Interest” means the Investor’s Membership Interest in the Company having the rights, preferences and designations provided for such interest in the Company LLC Agreement.

“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

[***] Confidential Treatment Requested

“Knowledge” means (a) as it applies to the Bloom Member, the actual knowledge, after reasonable inquiry, of those individuals listed on Annex 4, or (b) as to any other Person (other than a natural person), the actual knowledge, after reasonable inquiry, of the officers of such Person having responsibility for and direct involvement in the transactions contemplated by this Agreement and (c) in respect of any Person who is a natural Person, the actual knowledge, after reasonable inquiry, of such Person.

“LLC Agreements” means, collectively, the Company LLC Agreement and the Facility Company LLC Agreement.

“Material Adverse Effect” means, for any Person or Facility, as applicable, any material adverse effect on the business, earnings, Assets, results of operations or financial condition of such Person or Facility, as applicable, taken as a whole or, with respect to such Person, on its ability to perform its obligations under this Agreement, any other Investment Document, any Financing Document or any Principal Facility Document.

“Membership Interest” means, for a limited liability company, the membership interest of a member in such company including, without limitation, its right to a share of the profits, losses, deductions and credits of the company and its right to a distributive share of the Assets of the company in accordance with the provisions of such company’s operating agreement.

“Multiemployer Plan” means, with respect to a Party, a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA), which is, or within the immediately preceding six years was, contributed to by such Party or any of its ERISA Affiliates.

“MW” means megawatt.

“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Facility Company and each note purchaser party thereto.

“Party” means one of the parties to this Agreement, its successors and permitted assigns.

“Patriot Act” has the meaning set forth in Section 3.27.

“Permitted Encumbrances” means (a) liens, security interests, mortgages, hypothecations, encumbrances or other restrictions on title or property interest that are released or otherwise terminated at or prior to the date of delivery of the encumbered assets to the Site; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by the Facility Company and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of the Facility Lender; (e) liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar liens or encumbrances securing the payment of expenses not yet due and payable that were incurred in the ordinary course of business of the Facility Company or for amounts being contested in good faith and by appropriate proceedings; (g) encumbrances created pursuant to the Investment Documents; (h) all other Encumbrances that are incurred in the ordinary course

of business of the Facility Company, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material Assets of the Facility Company or the value of any such Assets; (i) easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Facility Company; (j) Encumbrances (including purchase options) created pursuant to the Power Purchase Agreements; (k) trade contracts or other obligations of a like nature incurred in the ordinary course of business of the Facility Company; (l) liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP or bonds or other security have been provided or which are fully covered by insurance; (m) liens of record and zoning and other land use restrictions that do not impair the value or intended use of a Facility; (n) restrictions on transfer of membership interests provided for in any Investment Document or under any applicable federal, state or foreign securities law and (o) any other liens agreed to in writing by the parties.

“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Placed in Service” has the meaning set forth in the A&R PUMA.

“Plan” means, with respect to any Party, an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA (other than a Multiemployer Plan) that is or, within the immediately preceding six years, has been established or maintained, or to which contributions are or, within the immediately preceding six years, have been made or required to be made, by such Party or any of its ERISA Affiliates or with respect to which such Party or any of its ERISA Affiliates may have any liability.

“Power Purchase Agreement” means each Power Purchase Agreement, Energy System Use Agreement or similar agreement pursuant to which the Facility Company sells the output of the Systems.

“PPA Customers” means each party to a Power Purchase Agreement that is not the Facility Company.

“Principal Facility Documents” means the Power Purchase Agreements, the Site Leases, the A&R PUMA, the ASA and the Facility Company LLC Agreement, substantially in the forms attached hereto as Annex 11, or as otherwise approved by the Investor. Reference to any Principal Facility Document shall include all appendices, annexes, exhibits, riders and schedules thereto.

“Prohibited Payment” has the meaning set forth in Section 4.11.

“PUHCA” means the Public Utility Holding Company Act of 2005.

“PUMA Invoice” means an invoice for one or more Facilities delivered pursuant to Section 2.2(a)(i) of the A&R PUMA.

“Regular Funding Date” means, with respect to a Tranche, the date that is the first Business Day on which the satisfaction or waiver of all of the Funding Date Conditions Precedent for such Tranche occurs, but which is not a Special Funding Date.

“Seller” has the meaning set forth in the Preamble hereto.

“Site” has the meaning set forth in the Preliminary Statements hereto.

“Site Leases” means each agreement between Facility Company and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Facility Company with the right of access to, and use of, a Site for the purposes of performing Facility Company’s obligations pursuant to the applicable Power Purchase Agreement. If Facility Company’s right of access to, and use of, a Site is contained within a Power Purchase Agreement, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to, and use of, that Site contained in such Power Purchase Agreement.

“Special Funding Date” means, with respect to a Tranche for which the Investor has not yet contributed the Initial Investor Contribution Amount, a date (a) which is seven (7) days prior to the anticipated Placed in Service date for the Facilities in such Tranche and (b) on which the satisfaction or waiver of all of the Funding Date Conditions Precedent for such Tranche occurs.

“System” has the meaning set forth in the Preliminary Statements hereto.

“Tax Information” has the meaning set forth in Section 7.17(b).

“Tax Return” means any return, report, information return, attachment, declaration, election, claim for refund or other document (including any schedule or related or supporting information) filed or supplied or required to be filed or supplied to any Taxing Authority with respect to Taxes including amendments thereto.

“Taxes” or “Tax” means all taxes, charges, fees, levies, duties, tariffs, imposts, penalties or other assessments imposed by any Governmental Authority or other Taxing Authority, including, but not limited to, income, excise, ad valorem, real or personal property, sales, use transfer, capital stock, franchise, payroll, withholding, social security, gross receipts, license, stamp, occupation, wage, employment, workers’ compensation or other taxes, including any interest, penalties or additions attributable thereto, that are owed or were paid by the Facility Company or with respect to the Facility Company’s Assets or operations.

“Taxing Authority” means the agency or department of the Governmental Authority responsible for the administration and collection of Taxes.

“Title IV Plan” means, with respect to any Party, a Plan subject to Title IV of ERISA to which the Party or any of its ERISA Affiliates is, or within the immediately preceding six years was, an “employer” as defined in section 3(35) of ERISA.

“Tranche” means one or more Facilities, collectively, for which a Bloom Member Contribution and/or an Investor Contribution is requested.

“Transaction” has the meaning provided in Section 7.17(a).

“Transaction Expenses” means, to the extent set forth in the Flow of Funds, the following: (i) the documented, reasonable fees (including legal fees), expenses and disbursements of the Facility Lender, the Company, the Facility Company and the Bloom Member; and (ii) amounts to be funded into any accounts of the Facility Company, including amounts required to be funded into any reserve accounts in accordance with the Financing Documents, in each case as set forth in the Base Case Model. For the avoidance of doubt, Transaction Expenses shall not include any Facility Costs.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Treasury” means the United States Department of the Treasury.

“Underfunded Plan” has the meaning set forth in Section 5.13(b).

“United States Person” means a “United States person” as defined in Code Section 7701(a)(30).

1.2. Rules of Interpretation.

In this Agreement:

(a) The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

(b) Unless otherwise expressly specified, references to “Articles,” “Sections,” or “Annexes” shall be to articles, sections or annexes of this Agreement.

(c) Unless otherwise expressly specified, any agreement, contract or document defined or referred to herein (including in any exhibit, schedule or annex hereto) shall mean such agreement, contract or document as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with such agreement, contract, or document, or this Agreement or (once executed and delivered by the signatories thereto) the LLC Agreements, as applicable.

(d) References to “days” shall mean calendar days, unless otherwise indicated.

(e) The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

2.1. Execution Date. The execution and delivery of this Agreement on the Execution Date by the Investor and the Bloom Member signifies the satisfaction of, or waiver by, the Investor and the Bloom Member, as applicable, of the Execution Date Conditions Precedent. For the avoidance of doubt, neither the Investor nor the Bloom Member shall be required to make any capital contributions pursuant to Section 2.2 on the Execution Date, unless a Funding Date occurs on the Execution Date.

2.2. Contributions.

(a) On the Execution Date, the Bloom Member shall make a contribution to the Company in an amount equal to [***] which amount shall be used to pay Transaction Expenses and Facility Costs due on or about the Execution Date.

(b) On each Regular Funding Date occurring on or prior to the Funding Date Deadline (provided that there shall be no more than one Regular Funding Date in each calendar month unless otherwise agreed in writing by the Bloom Member and the Investor):

(i) the Bloom Member shall contribute (or shall have already contributed) to the Company an amount equal to the lesser of (A) the aggregate amount of all Facility Costs for the applicable Tranche due and payable as of such Funding Date minus the proceeds of any notes being disbursed with respect to such Tranche pursuant to the Note Purchase Agreement and (B) the Bloom Member Contribution minus any previous contributions made by the Bloom Member pursuant to Section 2.2(a) with respect to Transaction Expenses or pursuant to this Section 2.2(b), whether for the Tranche subject to such funding or with respect to any other Tranche; and

(ii) thereafter, in the event that the amount to be funded pursuant to Section 2.2(b)(i) is insufficient to pay all Facility Costs for such Tranche, the Investor shall contribute to the Company an amount equal to the lesser of (A) the remaining amount of all Facility Costs for the applicable Tranche due and payable as of such Funding Date following the application of Section 2.2(b)(i) minus the proceeds of any notes being disbursed with respect to such Tranche pursuant to the Note Purchase Agreement and (B) the Investor Contribution minus any previous contributions made by the Investor pursuant to this Section 2.2, whether for the Tranche subject to such funding or with respect to any other Tranche.

(i) on any Special Funding Date, the Investor shall contribute to the Company an amount equal to the Initial Investor Contribution Amount for such Tranche, minus the amount of any previous Investor Contributions with respect to such Tranche;

(ii) if by the Funding Date Deadline, the aggregate amount of capital contributions made by the Bloom Member (including pursuant to Section 2.2(a) and Section 2.2(b)(i)) is not equal to [***] of the aggregate contributions made

[***] Confidential Treatment Requested

by both the Bloom Member and the Investor with respect to all Facility Costs for all Tranches (including without limitation any Initial Investor Contribution Amount), then, on such Funding Date Deadline, the Parties shall perform a true-up (the “Funding Date Deadline Capital Adjustment”) so that the deemed capital contributions of the Bloom Member equal [***] of the aggregate capital contributions and the deemed capital contributions of the Investor equal [***] of the aggregate capital contributions (with respect to each Party, the “Allocable Percentage”). To carry out the Funding Date Deadline Capital Adjustment, the Party who has contributed less than its Allocable Percentage shall contribute an additional amount such that, after (i) giving effect to such additional contribution by such Party, (ii) distributing such amount to the other Party and (iii) deeming such distribution to the other Party to have correspondingly reduced the aggregate contributions of such other Party to the Company, the percentage of the aggregate contributions made by the Bloom Member and the Investor shall equal the Allocable Percentages. Any positive difference between (x) the contributions previously made by a Party and (y) such Party’s Allocable Percentage shall be distributed to such Party on such Funding Date Deadline; and

(iii) for the avoidance of doubt, the Investor shall not be required to make any contributions pursuant to Section 2.2(b)(ii) or 2.2(c) to the extent of cost overruns related to the Facility that were not included in Facility Costs set forth in the Base Case Model.

(d) Bloom Member shall provide written notice to the Investor no less than ten (10) days prior to any anticipated Placed in Service date for a Facility with respect to which the Investor has not yet contributed the Initial Investor Contribution Amount, and after the delivery of such notice shall not cause such Facility to be Placed in Service until the earlier of (a) the anticipated Placed in Service date and (b) the date following the date on which the Investor has contributed the Initial Investor Contribution Amount.

2.3. Execution of LLC Agreement. On the initial Funding Date, each of the Investor and the Bloom Member shall execute and deliver the Company LLC Agreement and, simultaneously with the making of the capital contributions pursuant to Section 2.2, the Company shall, and the Bloom Member shall cause the Company to, issue Class A Units to the Investor and issue Class B Units to the Bloom Member, in each case in accordance with the terms of the Company LLC Agreement.

2.4. Use of Funding Date Proceeds. On each Funding Date, the contributions made to the Company by the Bloom Member and the Investor pursuant to Section 2.2, together with any loans being made on such Funding Date pursuant to the Note Purchase Agreement, shall be allocated as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, any PUMA Invoice submitted on or prior to such date and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

[***] Confidential Treatment Requested

(b) Second, to contribute to the Facility Company amounts required to be contributed to the Facility Company pursuant to the Financing Documents;

(c) Third, to pay any Transaction Expenses not otherwise paid pursuant to Section 2.4(b) that are payable on such date; and

(d) Fourth, to the extent applicable as set forth in Section 2.2(c)(ii), on the Funding Date Deadline, any distribution due in connection with the Funding Date Deadline Capital Adjustment shall be distributed by the Company to the appropriate Party.

2.5. Final List of Facilities. No later than the Funding Date Deadline, the Bloom Member shall provide to the Investor a list of all Facilities that have been funded by the Investor.

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

The Bloom Member represents and warrants to the Investor as follows on each Funding Date; provided, that the representations and warranties made on any Funding Date shall expressly apply only to the Facilities that are being funded on such Funding Date:

3.1. Organization and Good Standing. Each Facility Entity is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents, Financing Documents and Principal Facility Documents. Each Facility Entity is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect on such Facility Entity. The Bloom Member has previously delivered to the Investor true, correct and complete copies of the Facility Company’s organizational documents, with all material amendments thereto, in effect as of the date thereof, and, except as otherwise delivered to the Investor, there have been no material changes, amendments, modification or terminations of such organizational documents.

3.2. Authorization, Execution and Enforceability. Each Facility Entity has full limited liability company power and authority to execute and deliver each Investment Document, each Financing Document and each Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. The execution and delivery by each Facility Entity of each Investment Document, each Financing Document and Principal Facility Document to which it is a party and the consummation by such Facility Entity of the transactions contemplated thereunder, have been duly authorized by all necessary limited liability company action required on the part of such Facility Entity. Each Investment Document, Financing Document and Principal Facility Document to which such Facility Entity is a party has been duly executed and delivered by such Facility Entity. Each Investment Document, Financing Document and Principal Facility Document to which such Facility Entity is a party constitutes the valid and binding obligation of such Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

3.3. No Violation. The execution, delivery and performance by each Facility Entity of this Agreement and each Investment Document, Financing Document and Principal Facility Document to which it is a party and the consummation of the transactions contemplated hereunder and thereunder, do not and will not: (a) violate, or conflict with, in any material respect, any provision of the certificate of formation or operating agreement of such Facility Entity; (b) violate any material provision or material requirement of Applicable Law applicable to such Facility Entity; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Investment Document, Financing Document or Principal Facility Document to which such Facility Entity is a party; (d) result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, lease or sublease agreement to which any Facility Entity is bound; (e) violate any judgment, decree or order of any court or arbiter to which any Facility Entity is a party or by which any Facility Entity is bound; or (f) result in the creation or imposition of any Encumbrance on the Assets of any Facility Entity other than Permitted Encumbrances upon any of the Assets of such Facility Entity or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to such Facility Entity.

3.4. Subsidiaries; Non-Related Liabilities. The Company directly owns 100% of the Membership Interests in the Facility Company free and clear of all Encumbrances other than Permitted Encumbrances of the type described in clauses (d) and (n) of such term’s definition. The Company has no, and has never had, any Assets or any liabilities which do not arise from or otherwise relate to the ownership or operation of the Facility Company or the ownership or operation of the Facilities. The Facility Company has no, and has never had, any Assets or any liabilities that do not arise from or otherwise relate to the ownership or operation of the Facilities. The Facility Company has no, and has never had any, subsidiaries and has never owned or controlled, directly or indirectly, any interest in any other Person. The Company has no, and has never had any, subsidiaries and has never owned or controlled, directly or indirectly, any interest in any other Person other than the Facility Company.

3.5. Members of the Company; Additional Membership Interests. Immediately prior to the execution and delivery of this Agreement and the Company LLC Agreement, the Bloom Member is the sole member of the Company and there have never been any other members or owners of the Company. Upon execution and delivery of the Company LLC Agreement, the Bloom Member and the Investor shall hold the respective membership interests in the Company as set forth in the Company LLC Agreement and said interests shall constitute the entire membership interests in the Company. Other than as set forth in this Agreement, the Financing Documents, the Power Purchase Agreements and the Company LLC Agreement, none of the Facility Entities or the Bloom Member have any contract, arrangement or commitment to issue or sell any of its membership interests or any interest in the Company, the Facility Company or the Facilities or any securities or obligations convertible into or exchangeable for, or giving any Person any right to acquire from it, any of its membership interests or any interest in the Company, the Facility Company or the Facilities, and no such securities or obligations are issued or outstanding other than as contemplated by this Agreement or the Company LLC Agreement.

Upon the execution and delivery of the Company LLC Agreement and payment to the Company of the Investor Contribution on the first Funding Date, the Class A Units will be validly issued and duly authorized and the Investor will have good title to the Class A Units free and clear of all Encumbrances, other than Permitted Encumbrances of the type described in clause (n) of such term’s definition.

3.6. Warranty of Title; Personal Property. The Facility Company is the sole owner of each of the Facilities that has been delivered to a Site and the Facility Company has good and valid title to all of the Facility Company’s Assets free and clear of all Encumbrances except Permitted Encumbrances. All of the Bloom Systems (as defined in the A&R PUMA) located in (a) the State of California are considered personal property and not real property under the laws of the State of California, (b) the State of Connecticut are considered personal property and not real property under the laws of the State of Connecticut, (c) the State of New Jersey are considered personal property and not real property under the laws of the State of New Jersey, and (d) the State of New York are considered personal property and not real property under the laws of the State of New York.

3.7. Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all Assets (other than Governmental Approvals or intellectual property rights) necessary for the construction, installation, operation and maintenance of the Facilities and has obtained all Governmental Approvals, and owns, or holds a license with respect to, all intellectual property rights (without any known conflict with, or infringement of, the rights of others), in each case, required as of such date to construct such Facilities, own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Financing Documents and Principal Facility Documents to which the Facility Company is a party. 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 which is reasonably likely to have a Material Adverse Effect on the Facility Company. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

3.8. Intellectual Property. To the Knowledge of the Bloom Member, no product or service marketed or sold (or proposed to be marketed or sold) by either Facility Entity violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Neither Facility Entity has received any written communications alleging that such Facility Entity 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.

3.9. Employees. None of the Facility Entities has, or has had since the date of its creation, any employees or any Plan or any obligations with respect to any Multiemployer Plan.

3.10. Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of any Facility Entity for which any Facility Entity or the Investor will be responsible.

3.11. Consents and Approvals. Except as set forth on Annex 5, each Facility Entity has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by such Facility Entity.

3.12. Compliance with Applicable Law. Each of the Facility Entities, the business and operations of the Facility Entities and, with respect to the Facility Company, the development and construction of the Facilities are and have been, conducted in all material respects in compliance with all Applicable Law (except that this representation does not apply to Environmental Laws, which are addressed in Section 3.15, and Taxes, which are addressed in Section 3.23).

3.13. Litigation. There is no action, suit, claim, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature pending or, to the Knowledge of the Bloom Member, threatened in writing against any Facility Entity involving, affecting or relating to the transactions contemplated hereunder or any Facility Entity’s ability to complete the transactions contemplated hereunder, questioning the validity of the Investment Documents, the Financing Documents or the Principal Facility Documents, or involving the ownership or operation of any Facility, at law or in equity, or before or by any Governmental Authority or arbitral body. No Facility Entity is subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder or questioning the validity of the Investment Documents, the Financing Documents or the Principal Facility Documents.

3.14. Contracts. The Facility Company is a party to all material contracts that are necessary for it to be a party to as of such date for the ownership, construction, installation, financing and operation of the Facilities. Each such contract is in full force and effect and constitutes a valid and binding obligation of the applicable Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law. There are no material disputes or legal proceedings between any Facility Entity and any counterparty to any Financing Document and Principal Facility Document. No Facility Entity (x) owes any indemnity payment to any counterparty to any Financing Document or Principal Facility Document, or (y) has any Knowledge of any event, act, circumstance or condition which constitutes, or, with the passage of time could reasonably be expected to constitute, an event of force majeure under any Financing Document or Principal Facility Document. The consummation of the transactions contemplated by the Investment Documents would not give any party to any Financing Document or Principal Facility Document the right to terminate or alter the terms of such contract or a right to claim damages thereunder.

3.15. Default. None of the Facility Entities nor, to the Knowledge of the Bloom Member, any of the other parties to the Financing Documents or Principal Facility Documents in effect with respect to the Facilities is in default under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in a default under, any of such Financing Documents, Principal Facility Documents or Governmental Approvals, whether caused by a Facility Entity or any other party to any of the Principal Facility Documents or any Governmental Approval, which, in each such case could reasonably be expected to result in a Material Adverse Effect.

3.16. Environmental Matters.

(a) The Facility Company has not failed to perform or suffered any act which could give rise to, or has otherwise incurred, liability to any person (governmental or not) under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or any other Environmental Laws, nor has it received written notice of any such liability or any claim therefor.

(b) To the Knowledge of the Bloom Member, there are no existing conditions at any Facility that, individually or collectively, could be reasonably expected to give rise to any liability of the Investor, Company or the Facility Company under any applicable Environmental Law or any applicable standard of conduct under any common law doctrine, including negligence, nuisance or trespass, personal injury or property damage related to or arising out of the presence, Release or exposure to Hazardous Substances.

(c) To the Knowledge of the Bloom Member, there are no existing facts or circumstances that, individually or collectively, could reasonably be expected to result in the revocation of the Environmental Permits, if any, or an order prohibiting, terminating or modifying any Facility’s operations, which, in each such case, could be reasonably expected to have a Material Adverse Effect.

3.17. Casualty Defect. There is no Casualty Defect in existence with respect to any Facility.

3.18. Real Property. The real property referred to in each PPA and any Site Lease 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.

3.19. PUHCA and FPA Status. The Company has obtained an exemption or waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. §§ 366.21, 366.22, and 366.23. The Facility Company has not sold and will not sell electric energy, unless such sales are (1) exclusively to retail users; or (2) pursuant to a State-approved net metering program, provided that the amount of electricity sold during any billing cycle has or will be less than the amount of electricity purchased in the same billing cycle. The Facility Company is not, and following the time that one or more Facilities commences the generation of electric energy for sale will not be, a “public utility” within the meaning of Section 201(e) of the FPA.

3.20. Affiliate Transactions. Except as listed on Annex 8, there are no existing contracts between any Facility Entity, on the one hand, and any affiliate of the Bloom Member, on the other hand. Each contract, arrangement or agreement between the Bloom Member or its Affiliates and the Facility Company or the Company is on arms’ length terms and conditions, and any compensation provided in such contract, arrangement or agreement is commercially reasonable in relation to the value of the services provided.

3.21. Information. All of the factual information posted by, or on behalf of, the Bloom Member to the Electronic Data Room, taken as a whole, was accurate and complete (or, where appropriate, estimated in good faith) in all material respects when posted to the Electronic Data Room and none of such information, as of the date such information was posted, taken as a whole, contained an untrue statement of a material fact or omitted to state any material fact which was necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made with regard to projections or other forward-looking statements provided by or on behalf of the Facility Entities, the Bloom Member or any of their respective Affiliates (including the Base Case Model and the assumptions therein).

3.22. Insurance. The insurance policies maintained by the Facility Entities and for the Facilities meet the requirements of Annex 3 and such insurance policies are in full force and effect.

3.23. State Regulation. The Facility Company is not and will not be subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code. The Facility Company will not be subject to regulation as a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes. The Facility Company will not be subject to regulation as an “electric corporation” as such term is defined in section 2 of the New York Public Service Law. The Facility Company will not be subject to regulation as a “public utility” in relation to public utility law of New Jersey.

3.24. Taxes. The Facility Company is, and has been, a “disregarded entity” for federal and other applicable income tax purposes. Immediately prior to the initial Funding Date only, the Company is, and has been, a “disregarded entity” for federal and other applicable income tax purposes. None of the Facility Entities is a corporation or has ever been a corporation. None of the Facility Entities, the Bloom Member or any Affiliate thereof has filed Internal Revenue Service Form 8832 (or any alternative or successor form) to elect to have, or taken any other action which would result in, any Facility Entity being classified as a corporation for federal income tax purposes under Treasury Regulation Section 301.7701-3. All material Tax Returns of the Facility Entities that were required to be filed have been timely and properly filed. All such Tax Returns were true, correct and complete in all material respects as they refer to any Facility Entity or the operations or Assets or any Facility Entity. All material Taxes (whether or not shown on any Tax Return) attributable to the operations or Assets of any Facility Entity, or for which the Facility Entity may be liable, that are due and payable have been timely and properly paid (taking into account all valid extensions). Except as disclosed in Annex 9, no Facility Entity has any material Taxes which are currently due and payable. No Facility Entity

has requested or had requested on its behalf or agreed to any extensions of time within which to file any waivers or comparable consents of the statute of limitation with respect to Taxes and is not currently the subject of any audit, assessment, claim, examination, or administrative or court proceeding with respect to Taxes and none have been threatened in writing. No Facility Entity has received any written notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. No Facility Entity has any powers of attorney relating to Taxes in effect. No Facility Entity has or has had any tax sharing, tax allocation, tax indemnity, or similar agreement in effect with respect to Taxes.

3.25. Tax Representations.

(a) No Facility Entity has leased any part of any Facility to a Disqualified Person or has taken any other action that has resulted in any Facility becoming “tax-exempt use property” within the meaning of Code Section 168(h).

(b) Each System is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each System will function independently of each other Systems to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

(c) As of the Funding Date on which an Investor Contribution is being made with respect to a Facility, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the applicable Tranche. 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.

(d) No private letter ruling has been, obtained for the transactions contemplated hereunder from the IRS.

(e) Prior to the Funding Date on which an Investor Contribution is being made with respect to a Facility or prior to the date such Facility is purchased by the Facility Company, no System or BOF that is part of a Facility will be originally Placed in Service and, specifically, clauses (3) and (4) of the definition of the term “Placed in Service” will not have been met with respect to any System or BOF that is part of a Facility.

(f) No Facility is comprised of any property that (i) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (ii) is imported property of the kind described in Code Section 168(g)(6), (iii) is “tax-exempt use property” within the meaning of Code Section 168(h), or (iv) is property described in Code Section 50(b).

(g) 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 as state of readiness and availability for their specific design function as part of the Facility.

(h) 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.

(i) 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 the Bloom Member, the Company, the Facility Company, or any Facility 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.

(j) Neither the Bloom Member nor any Facility Entity is related to any PPA Customer within the meaning of Code Section 267 or Code Section 707.

3.26. Bankruptcy. No event of Bankruptcy has occurred with respect to any Facility Entity.

3.27. Executive Order 13224 and the Patriot Act. None of the Bloom Entities or any person or entity that holds any direct or indirect interest in the Facility Company, Company, the Bloom Member, or any Facility (other than the Investor or any Affiliate thereof), or is in any way affiliated with or will benefit from any of the above, (i) is described in, covered by, or specially designated pursuant to or affiliated with any person or entity described in, covered by, or specially designated pursuant to “Executive Order 13224 Blocking Terrorist Property and a Summary of the Terrorism Sanctions Regulations (Title 31, Part 595 of the U.S. Code of Federal Regulations), Terrorism List Governments Sanctions Regulations (Title 31, Part 596 of the U.S. Code of Federal Regulations), and Foreign Terrorist Organizations Sanctions Regulations (Title 31, Part 597 of U.S. Code of Federal Regulations)” (“Executive Order 13224”), or any other list or designation promulgated by the United States of America or any department or agency thereof of persons or entities transactions with which are blocked or prohibited by any statute, regulation or governmental order and (ii) is, or is reasonably likely to become, a person or entity with which any individual or entity is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended from time to time (the “Patriot Act”) or Executive Order 13224, and any regulations promulgated pursuant thereto.

3.28. Facility Costs. As of each Funding Date, each PUMA Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid, such PUMA Invoice.

3.29. Facility Purchase Conditions. For each Facility, as of the Funding Date applicable to such Facility, the Facility Purchase Conditions were true and correct for such Facility.

3.30. Financial Statements. The unaudited balance sheet of the Facility Company delivered pursuant to Sections 6.2(k) has been prepared in accordance with generally accepted accounting principles applied on a consistent basis (except that such balance sheet may not contain all footnotes required by such accounting principles) and presents fairly in all material respects the financial position of the Facility Company as of the date of such balance sheet.

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER

The Bloom Member represents and warrants to the Investor as follows on each Funding Date under this Agreement:

4.1. Organization and Good Standing. The Bloom Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents, Financing Documents and Principal Facility Documents.

4.2. Authorization, Execution and Enforceability. The Bloom Member has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on its part. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

4.3. No Violation. The execution, delivery and performance of this Agreement and each other Investment Document to which the Bloom Member is a party, the consummation of the transactions contemplated hereunder and thereunder do not or will not: (a) violate or conflict with any provision of its certificate of formation or operating agreement in any material respect; (b) violate any material provision or material requirement of any Applicable Law applicable to the Bloom Member; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Financing Document or Principal Facility Document; or (d) result in the creation or imposition of any Encumbrance on its Assets other than a Permitted Encumbrance.

4.4. Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of the Bloom Member for which any Facility Entity or the Investor will be responsible.

4.5. Consents and Approvals. Except as set forth on Annex 5, the Bloom Member has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by the Bloom Member.

4.6. Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to the Knowledge of the Bloom Member, threatened in writing by or against the Bloom Member, the Bloom Member’s directors, officers, employees, agents, any of the Bloom Member’s Affiliates involving, affecting or relating to the transactions contemplated hereunder or the Bloom Member’s ability to consummate the transactions contemplated hereunder or involving the ownership or operation of the Facilities, at law or at equity, or before or by any Governmental Authority or arbitral body. The Bloom Member is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or the Bloom Member’s ability to consummate the transactions contemplated hereunder.

4.7. United States Person. The Bloom Member is a United States person not subject to withholding under Section 1446 of the Code.

4.8. Disqualified Person. The Bloom Member is not a Disqualified Person.

4.9. Ownership. Immediately prior to the initial Funding Date, the Bloom Member owns 100% of the Membership Interests in the Company, free and clear of all Encumbrances other than Permitted Encumbrances.

4.10. No Options. Except as set forth herein and in the other Investment Documents and Financing Documents, there are no outstanding options, warrants or other rights (including conversion or preemptive rights, preferential rights to purchase and rights of first refusal) obligating the Bloom Member to transfer any rights, interests or properties to any party relating to any applicable Facility Entity or any Facility.

4.11. Compliance with Law. The Bloom Member, in respect of itself, warrants that in performing its obligations pursuant to this Agreement and the other Investment Documents to which it is a party, that the Bloom Member, its officers, directors, employees and agents have not and will not, directly or indirectly, offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any Prohibited Payment (as defined below) to any officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candidate for or appointee to a political or government office, or any political party (each a “Government Official”). As used herein the term “Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised or given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either (i)

influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with such government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party. The Bloom Member further affirms that it shall promptly report to the other parties hereto any Prohibited Payment of which it obtains knowledge with respect to the services performed under this Agreement.

4.12. Fees. All fees to be paid to the Bloom Member or its Affiliates, as well as the other terms and conditions, under the A&R PUMA and the ASA are commercially reasonable in relation to the services actually performed under such agreements.

ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor hereby represents and warrants to the Bloom Member as follows on each Funding Date:

5.1. Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power and authority to carry on its business as such business is now conducted.

5.2. Authorization, Execution and Enforceability. It has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party, to make its respective Equity Capital Contributions and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement and each other Investment Document to which it is a party constitute its valid and binding obligation, enforceable against it in accordance with its respective terms except as such terms may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

5.3. No Violation. The execution, delivery and performance by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder or thereunder do not and will not: (a) violate or conflict with any provision of its organizational documents in any material respect; (b) violate any material provision or material requirement of any Applicable Law applicable to it; or (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default, or result in an Encumbrance being created or imposed upon any of the properties or Assets of such Investor, under any material contract to which such Investor is a party or by which its property is bound, which violation, breach, default or Encumbrance would adversely affect the ability of such Investor to perform its obligations under this Agreement and the other Investment Documents to which it is a party.

5.4. Consents and Approvals. There is no requirement applicable to it to make any filing with, or to obtain the consent or approval of any Person as a condition to the consummation of the transactions contemplated hereunder, other than those that have already been obtained. All third-party consent requirements which are a condition to the execution, delivery and performance by such Investor of this Agreement and the other Investment Documents to which it is a party and the consummation of the transactions contemplated hereunder have been satisfied.

5.5. Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to its Knowledge, threatened in writing by or against it, its directors, officers, employees, agents of it, or any of its Affiliates involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder. It is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder.

5.6. Investment Intent; Unregistered Securities. The Investor Interests to be held by it will be acquired for investment for its own account, not with a view to the distribution of any part thereof and, without in any way affecting its right to dispose of its Membership Interest in the Company as permitted by the Company LLC Agreement, it has no present intention of selling, granting any participation in, or otherwise distributing the same. It understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests or an exemption from registration under federal and state securities laws.

5.7. Accredited Investor. It is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. It has such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Membership Interests in the Company; it has independently evaluated the risks and merits of purchasing the Membership Interests in the Company and has independently determined that the Membership Interests in the Company is a suitable investment for it; and it has sufficient financial resources to bear the loss of its entire investment in the Membership Interests in the Company. It has received all the information it considers necessary or appropriate for deciding whether to make its respective Equity Capital Contributions and acquire its respective Membership Interests in the Company and further represents that it has had an opportunity to ask questions and receive answers from the Bloom Member regarding the terms and conditions of the offering of the Membership Interests in the Company and the business, properties, prospects and financial condition of the Facility Entities.

5.8. Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of it for which the Bloom Member or each Facility Entity will be responsible.

5.9. United States Person. It is a United States person not subject to withholding under Section 1446 of the Code.

5.10. [Intentionally Left Blank.]

5.11. Disqualified Person. The Investor is not a Disqualified Person.

5.12. Related Party. The Investor is not related to any PPA Customer within the meaning of Code Section 267 or Code Section 707

5.13. Compliance with ERISA. The representations set forth this Section 5.13 apply only to an Investor during the time that such Investor is an ERISA Affiliate of the Company.

(a) The Investor and each of its ERISA Affiliates has operated and administered each Title IV Plan (other than any Multiemployer Plan) in compliance in all material respects with all applicable laws. Neither the Investor nor any of its ERISA Affiliates has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA) which has not been satisfied, and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such material liability by the Company, the Investor or any of its ERISA Affiliates, or in the imposition of any material lien on any of the rights, properties or assets of the Company, the Investor or any of its ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to such penalty or excise tax provisions or to section 4068 of ERISA.

(b) The present value of the aggregate benefit liabilities under all of the ERISA Affiliates’ Underfunded Plans, determined as of the end of each such Underfunded Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Underfunded Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of all of such Underfunded Plans, determined by reference to the current value of the assets allocable to each such Underfunded Plan’s benefit liabilities as of the end of such Underfunded Plan’s most recently ended plan year, by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect. The term “Underfunded Plan” means a Plan (other than a Multiemployer Plan) for which the aggregate benefit liabilities determined as of the end of such Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Plan in such Plan’s most recent actuarial statement exceeded the aggregate current value of the assets of such Plan, the term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

(c) Neither the Investor nor any of its ERISA Affiliates has incurred any material partial or complete withdrawal liabilities (and is not subject to material contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans.

5.14. No Other Representations. The Investor 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 this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

6.1. Execution Date Conditions Precedent. The execution and delivery by the Investor and the Bloom Member of this Agreement on the Execution Date signifies that the following conditions have been satisfied or waived by the Investor and the Bloom Member, as applicable (“Execution Date Conditions Precedent”):

(a) Investor has received fully executed copies of this Agreement, the A&R PUMA, the ASA, the Interparty Agreement and the Facility Company LLC Agreement, each in form and substance reasonably satisfactory to such Investor, and each is in full force and effect;

(b) Investor has received a legal opinion of [***] as counsel to the Bloom Member with respect to [***] in form and substance reasonably satisfactory to the Investor;

(c) Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if such Insurance Report is not addressed to the Investor;

(d) Investor has received a tax opinion from [***] which opinion shall be in form and substance reasonably satisfactory to the Investor;

(e) Investor has received necessary approval from its internal investment committee, board of directors or other governing body, as applicable, to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2;

(f) Investor has received (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, and the Bloom Member, (ii) a good standing certificate of the Facility Entities, and the Bloom Member, each dated as of a recent date, from the applicable Secretary of State, (iii) resolutions of the board of directors, or other equivalent governing body, of the Facility Entities, and the Bloom Member authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date, and (iv) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Bloom Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

[***] Confidential Treatment Requested

(g) such Investor has received an affidavit of non-foreign status from the Bloom Member dated the Execution Date that complies with Section 1445 of the Code;

(h) the Flow of Funds for the Execution Date shall have been executed and delivered by the Bloom Member to the Investor;

(i) such Investor has received the Base Case Model, in form and substance reasonably satisfactory to it;

(j) Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;

(k) Investor has received reasonably satisfactory evidence of the transfer of the membership interests in the Facility Company from the Bloom Member to the Company;

(l) Investor has received fully executed copies of the Financing Documents;

(m) Investor has received the Independent Engineer Report and a letter executed by the Independent Engineer substantially in the form attached at Annex 7, permitting the Investor to rely on such Independent Engineer Report, if such Independent Engineer Report is not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;

(n) the Bloom Member has received (i) an incumbency certificate dated as of the Execution Date from the Investor, (ii) a good standing certificate of the Investor, each dated as of a recent date, from the applicable Secretary of State, (iii) resolutions of the board of directors, or other equivalent governing body, of the Investor authorizing and approving the execution of this Agreement, the other Investment Documents to which the Investor is a party and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date, and (iv) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Investor as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Bloom Member;

(o) the Bloom Member has received a legal opinion of outside or in-house counsel of the Investor with respect to [***] in form and substance reasonably satisfactory to Bloom Member; and

(p) Investor has received a fully executed copy of the Bloom Guarantee, in form and substance reasonably satisfactory to the Investor, which is in full force and effect.

6.2. Funding Date Conditions Precedent. The obligations of the Investor and the Bloom Member to make a contribution on the Funding Date are subject to the satisfaction of or waiver by the Investor and the Bloom Member, as applicable, of the following conditions with respect to the applicable Tranche to be funded on such Funding Date (“Funding Date Conditions Precedent”):

(a) Investor has received at least [***] Business Days’ notice (or shorter period acceptable to the Investor) from the Bloom Member of the Funding Date (which notice of the Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations for the Facilities to be funded, the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.2;

[***] Confidential Treatment Requested

(b) (b) with respect to the initial Funding Date, the Investor has received a fully executed copy of the Company LLC Agreement;

(c) Investor has received true, correct and complete copies of all of the insurance certificates from the insurance broker with respect to the insurance policies for the Company, the Facility Company and the applicable Tranche that are described in Annex 3 or are otherwise required by Facility Lender under the Financing Documents, or such other evidence reasonably satisfactory to the Investor that such insurance policies are in full force and effect;

(d) each Facility Entity has received all necessary third party consents, waivers, authorizations and approvals required as of such date in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereunder;

(e) the Facility Company is not subject to regulation as (i) a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code, (ii) a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes, (iii) an “electric corporation” as such term is defined in section 2 of the New York Public Service Law, or (iv) a “public utility” in relation to public utility law of New Jersey;

(f) each of the representations and warranties in this Agreement that are applicable to each Facility being funded on such Funding Date is true and correct in all material respects as of such Funding Date;

(g) no Material Adverse Effect has occurred, or could reasonably be expected to occur based on current facts and circumstances, with respect to either Facility Entity or the Bloom Member;

(h) the Bloom Member shall have performed in all material respects all obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it hereunder as of such date, and the Bloom Member has not otherwise breached this Agreement;

(i) Investor has received reasonably satisfactory evidence that the Bloom Member Contribution, if any, required to be made on such date has been made or shall be made contemporaneously with the Investor Contribution on such date;

(j) Investor has received a certificate from the Bloom Member, dated as of such Funding Date, certifying to the Investor that (i) each of the conditions set forth in Sections 6.2(d)-(h) has been satisfied and (ii) all amounts then payable to the Seller pursuant to the A&R PUMA have been paid or shall be paid with the proceeds of the Investor Contribution, the Bloom Member Contribution and the loans pursuant to the Note Purchase Agreement to be made on such date;

(k) Investor has received the unaudited balance sheet of the Facility Company for the latest period for which its books have been closed;

(l) the Flow of Funds for such Funding Date shall have been executed and delivered by the Bloom Member to the Investor;

(m) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Facilities in respect of which such funding is being made;

(n) Investor has received a certificate from the Bloom Member, dated as of such Funding Date, certifying to the Investor that (i) the Facility Purchase Conditions have been satisfied with respect to each Facility in the applicable Tranche as of such Funding Date and (ii) the list attached to such certificate setting forth the Facilities included in the applicable Tranche is true, correct and complete;

(o) Investor has received fully executed copies of any amendments to the Financing Documents, if any in forms previously agreed to by the Bloom Member and the Investor that have been executed as of such date and which have not been previously delivered to the Investor;

(p) Investor has received fully executed copies of each of the Principal Facility Documents in forms previously agreed to by the Bloom Member and the Investor relating to the Facilities being funded on such date;

(q) the ITC has not been repealed or modified in a manner that would materially reduce the amount of ITC available for the Facilities;

(r) [***]

[***]

[***] Confidential Treatment Requested

ARTICLE SEVEN

GENERAL PROVISIONS

7.1. Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 7.1 are:

If to the Bloom Member, to:

Clean Technologies 2014, LLC

c/o Bloom Energy Corporation

0000 Xxxxxxx Xxxxx

Xxxxxxxxx, XX 00000-0000

Attention: Xxxx Xxxxxxxxxxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Email: xxxx.xxxxxxxxxxxxxx@xxxxxxxxxxx.xxx

If to the Investor, to:

Exelon Generation Company, LLC

00 X. Xxxxxxxx Xx., 00xx Xxxxx

Xxxxxxx, XX 00000

Attention: Xxxx X. Xxxxxxx

with a copy to:

Exelon Business Services Company, LLC

00 Xxxxx Xxxxxxxx Xx., 00xx Xxxxx

Xxxxxxx, XX 00000

Attn: Xxxxxx X. Xxxxxx

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above.

7.2. Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of each Party contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and each Funding Date and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of each Party. Without limiting the foregoing, the representations set forth in Sections 3.23, 3.24, 3.25, 4.8, and 5.11 shall survive until the expiration of the applicable statute of limitations plus ninety (90) days.

7.3. Indemnity. Without duplication of any indemnity provided pursuant to Article XI of the Company LLC Agreement, each Party (the “Indemnifying Party”) shall indemnify the other Parties and their Affiliates and agents, including accountants, counsel, directors, officers, employees and consultants (the “Indemnified Parties”), against and hold each of them harmless from any and all damage, loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any proceeding, whether by a third party or instituted in order to recover any of the foregoing hereunder), whether or not arising due to third party claims or incurred or suffered by any Indemnified Party, caused by, resulting from, arising out of or relating to (i) any inaccuracy or breach of any representation or warranty made by or on behalf of the Indemnifying Party in this Agreement, and (ii) any failure by the Indemnifying Party to perform or otherwise fulfill any agreement or covenant to be performed by it hereunder or under any of the Principal Facility Documents or Financing Documents; provided that the indemnity obligations set forth in this Section 7.3 shall not apply to an Indemnified Party to the extent that the indemnity claim is attributable to (x) the fraud, gross negligence or willful misconduct of such Indemnified Party or (y) the inaccuracy or breach of any representation or warranty made by or on behalf of such Indemnified Party in this Agreement or (z) the failure of such Indemnifying Party to perform or otherwise fulfill any agreement or covenant to be performed by it hereunder or under any of the Principal Facility Documents or Financing Documents.

7.4. Limitation on Liability.

(a) The amount required to be paid by any Party to indemnify any other Party pursuant to Section 7.3 shall be reduced to the extent of any amounts actually received by such other Party with respect to the amounts covered by such indemnification payment pursuant to (i) this Agreement, (ii) the Bloom Guarantee, (iii) the Company LLC Agreement and (iv) the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company, the Investor or the Bloom Member or any Affiliate thereof covering such claim. In the event an Indemnified Party or any of its Affiliates receives proceeds from indemnification under this Agreement, the Bloom Guarantee, the Company LLC Agreement or any insurance policy with respect to an indemnity clam for which it previously received indemnification payments, such Indemnified Party shall promptly pay to the Indemnifying Party such proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable indemnity claim.

(b) Amounts paid pursuant to Section 7.3 shall, to the maximum extent permitted under Applicable Law, be treated as an adjustment to the capital contributions of the Members (as defined in the LLC Agreement) (or otherwise as a non-taxable reimbursement, contribution, or return of capital, as the case may be). To the extent any amounts paid pursuant to this Section 7.3 are includible in the recipient’s gross income, as determined by agreement of the parties, or if there is no agreement, by an opinion of a nationally-recognized tax counsel selected jointly by the parties at a “should” level of comfort that such amount is includable as income of the recipient, solely to the extent the tax liability with respect to the inclusion of such payment of amounts in the income of the recipient is greater than the tax liability of the recipient would have been if there had been no breach giving rise to the payment of such amounts, such payment will be grossed-up and paid on an after-tax basis (assuming the then-highest highest marginal federal income tax rate then applicable to corporations). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to an item that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of the indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming then-highest marginal federal income tax rate then applicable to corporations).

(c) NO PARTY SHALL BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES WHICH CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

7.5. Exclusivity. The Parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by the Bloom Member pursuant to this Agreement, any other Investment Document, the ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other Parties hereto in respect of said breach, default, or nonperformance shall be damages, but only to the extent properly claimable hereunder and as limited pursuant to Section 7.4 or otherwise hereunder.

7.6. No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

7.7. Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of each of the Parties (or, in

respect of a waiver, the waiving Party or Parties). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

7.8. Binding Nature; Assignment. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties hereto and any such assignment contrary to the terms hereof shall be null and void and of no force and effect; provided, however, that (i) each Facility Entity may assign its rights under this Agreement to the Facility Lender as collateral for the obligations of the Facility Company under the Financing Documents and (ii) Investor may assign its rights and obligations under this Agreement to an Affiliate (“Affiliate Transferee”) without the prior written consent of the other Parties hereto provided that (a) the Investor remains liable for all of its obligations hereunder, (b) the Affiliate Transferee has the same or better credit rating as possessed by the Investor as of the Execution Date or (c) the Affiliate Transferee’s obligations hereunder are guaranteed by an entity that has the same or better credit rating as possessed by the Investor as of the Execution Date.

7.9. Governing Law. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

7.10. Jurisdiction; Service of Process. Each of the Parties hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York located in New York County and of the United States District Court for the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 7.1 hereof.

7.11. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument. Signatures of the Parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

7.12. Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

7.13. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such

prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

7.14. Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior statements or agreements, whether oral or written, among the Parties with respect to such subject matter.

7.15. No Solicitation. The transaction described in this Agreement has been discussed with a limited number of prospective institutional investor. The Investor may not solicit, directly or indirectly, whether through an agent or otherwise, the participation of another investor without the prior written approval of the Bloom Member.

7.16. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7.17. Confidentiality.

(a) With respect to each of the Facility Entities, the Investor and their respective Affiliates, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement, such party will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates or its advisors, counsel and public accountants (collectively, “advisors”)), directly or indirectly, any of the Principal Facility Documents or information furnished thereunder, or the Investment Documents or information furnished thereunder (the “Transaction”) and will use all reasonable efforts to have all such information kept confidential (consistent with its own practices) and not used in any way known to such party to be detrimental to any of the others; provided that (i) any such party and its advisors may use, retain and disclose any such information to its special counsel and public accountants or any Governmental Authority, (ii) any such party and its advisors may use, retain and disclose any such information that has been publicly disclosed (other than by such party or any Affiliate thereof or any of its advisors in breach of this Section 7.17(a)) or has rightfully come into the possession of such party or any Affiliate thereof or any of its advisors other than from another party hereto or a Person acting on such other party’s behalf, (iii) to the extent that any such party or any Affiliate thereof or its advisors is required or requested to disclose any such information as a result of any Applicable Law or may have received a subpoena or other written demand under color of legal right for such information, such party or such Affiliate or advisor may disclose such information, but such party shall first, as soon as practicable upon receipt of such demand or request, furnish a copy thereof to the other parties and, if practicable so long as such party shall not be in violation of such subpoena, demand or request or likely to become liable to any penalty or sanctions thereunder, afford the other parties reasonable opportunity, at any other party’s cost and expense, to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information

required to be disclosed, (iv) any such party and its advisors may disclose any such information to lenders, potential lenders or other Persons providing financing to the Facility Entities or any member in any Facility Entity, if such Persons have agreed to abide by the terms of this Section 7.17(a), (v) the Bloom Member and its advisors may disclose to Fitch any such information required for Fitch to rate the notes to be issued pursuant to the Note Purchase Agreement, (vi) any such party and its advisors may disclose any such information and make such filings, as may be required by this Agreement, the other Investment Documents or the Principal Facility Documents, (vii) any such party and its Affiliates and advisors may disclose information relating to the Facilities (but not information relating to a member’s equity investment in any Facility Entity) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of Membership Interests in such Person if such Persons have agreed to the terms of this Section 7.17(a) and (viii) any such party which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its investment portfolio. Notwithstanding anything herein to the contrary, a Party may disclose information to its Affiliates and other advisors in accordance with this Agreement if such Persons have agreed with the other Parties in writing to the terms of this Section 7.17(a) and, additionally, the Bloom Member and any of its Affiliates (including entities that become Affiliates subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell- powered electric generating facilities, whether similar to or different from the Facilities.

(b) Notwithstanding anything to the contrary, the foregoing obligations shall not apply to the tax treatment or tax structure of the Transaction and each party hereto (and any employee, representative, or agent of any party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all other materials of any kind (including opinions or other tax analyses) that are provided to any party hereto to the extent relating to such tax treatment and tax structure (all such information that may be so disclosed hereunder is hereinafter referred to as the “Tax Information”). For purposes of this Section 7.17(b), the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the Transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any of the Facility Entities, any member (or potential member) of the Facility Entities, or any other third parties involved in any of the Transaction or any other potential transactions with any of the foregoing. However, any Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. This Section 7.17(b) is intended to prevent such an investment in the Facility Entities from being treated as “reportable transaction” as a result of it being a transaction offered to a taxpayer under conditions of confidentiality within the meaning of Code Sections 6011, 6111 and 6112 (or any successor provision) and the Treasury Regulations thereunder (as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner consistent with such purpose.

7.18. Further Assurances.

(a) Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other Party hereto may reasonably request or as may otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement.

(b) Each Party hereto covenants and agrees to promptly deliver the information requested by any other Party in order to allow such party to comply with the Patriot Act, including, without limitation, the names, addresses and other information that will allow the requesting Party to identify the other Party in accordance with the requirements of the Patriot Act.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have caused this Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.


CLEAN TECHNOLOGIES 2014, LLC

By:		/s/ Xxxxxxx X. Xxxxxxxxxxxxxx
Name:		Xxxxxxx X. Xxxxxxxxxxxxxx
Title:		Vice President

[Signature Page to the Equity Capital Contribution Agreement]


EXELON GENERATION COMPANY, LLC

By:		/s/ Xxxx X. Xxxxxxx
Name:		Xxxx X. Xxxxxxx
Title:		Vice President

[Signature Page to the Equity Capital Contribution Agreement]

Schedule A

Bloom Member Contribution: [***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

[***] Confidential Treatment Requested

Schedule B

Investor Contribution: [***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

[***] Confidential Treatment Requested

ANNEX 1

[RESERVED]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 2

Base Case Model

See Attached.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 3

Insurance Requirements

The Facility Company shall, without cost to the Secured Parties (as defined in the Note Purchase Agreement), obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Annex.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Required Holders (as defined in the Note Purchase Agreement).

The policies specified in Appendix 1 of this Annex shall be in full force and effect at all times on and after the Execution Date or at such later inception date as is permitted by Appendix 1 to this Annex until termination of the Financing Documents subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this Annex shall be sufficient to satisfy the requirements set forth in the Principal Facility Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Facility Company meet the requirements of the Principal Facility Documents shall rest solely with the Facility Company.

The Facility Company shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Annex, and the Facility Company shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Facility Company hereby waives any and every claim for recovery against each note purchaser party to Note Purchase Agreement (the “Purchasers”) or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Annex to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Annex, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by the Deutsche Bank Trust Company Americas (acting in its capacity as collateral agent for the Purchasers, the “Collateral Agent”) from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Facility Company shall inform each of the Purchasers as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further requite its broker to do the same.

All policies of insurance required to be maintained pursuant to this Annex except workers compensation and employers liability shall provide:

•

Additional Insured status for the Collateral Agent and each of the Purchasers, the Investor, the Bloom Guarantor and in the case of liability policies only also their respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

•

Waivers of subrogation from the insurers in favor of the Additional Insureds.

•

Policies shall either (a) be non-cancellable except for non-payment of premium with at least 10 days written notice of such to each of the Purchasers; or (b) have cancellation/non-payment provisions in accordance with the provisions of this Annex.

•

Each Purchaser or the Collateral Agent, on behalf of the Purchasers, will have the right but not the obligation to pay premiums on behalf of the Facility Company in case of non- payment.

•

Policies shall be unaffected by any bankruptcy or foreclosure relating to the Facility Company or the Project.

•

Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Facility Company or the Additional Insureds. However, policies can act in excess of underlying policies and any policies provided by contractors in accordance with the requirements of this Annex.

•

The Facility Company shall ensure that no Insurer of a policy required in accordance with the terms of this Annex shall permit the first named insured under such policy to reduce limits or cover or degrade terms and conditions without the prior written approval of the Required Holders.

•

The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

•

Policy limits shall act in excess of deductibles including the indemnity period for time element insurance which shall act in excess of the delay deductible for such insurance.

•

Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

•

That the Collateral Agent for the benefit of the holders of the Notes (as defined in the Note Purchase Agreement) shall be sole loss payee of any amounts payable under the policies in relation to the Facility Company and the Project.

•

A non-vitiation clause the form of a multiple insured clause or equivalent protection acceptable to the Required Holders acting reasonably.

•

Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, with no sublimit applied or otherwise a sublimit acceptable to the Collateral Agent acting reasonably.

•

Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

•

An advance or partial payment endorsement.

•

A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

•

Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers compensation and employers liability shall provide:

•

Severability.

•

Cross liability with no insured or additional insured excluded.

The above requirements shall be referred to as the “Required Holder Provisions”. The Required Holder Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Holder Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Execution Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Annex.

The Facility Company shall provide each of the Purchasers as soon as reasonably possible prior to financial close, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

•

Each placing broker confirming:

•

Summary policy terms in the pre-agreed format.

•

That all policies required by this Annex are in full force and effect.

•

All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking insurance certificates for each policy required by this Annex listing the major sublimits (to be agreed) and confirming that all required endorsements that apply to such policy are in place.

•

The Insurance Consultant confirming that:

•

The insurance provided complies with the requirements of the Note Purchase Agreement, this Annex and further complies with the requirements of the Facility Company in the Principal Facility Documents.

•

That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The Collateral Agent may, at its sole discretion, waive the requirement for a certificate from the Insurance Consultant at policy replacement/renewal without requiring the approval of the Holders (as defined in the Note Purchase Agreement) or the Required Holders.

The insurance provided by the Facility Company shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Facility Company.

Any of the requirements of this Annex can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Facility Company, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Annex to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Facility Company shall promptly inform the Collateral Agent and each of the Purchasers of such purported unavailability and the Facility Company shall seek a waiver from the Required Holders in relation to such purported unavailability in which case the Required Holders, acting after consultation with the Insurance Consultant, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Holders of any such waiver is conditional on: (i) the Facility Company first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Facility Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Holders after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Facility Company shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Holders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Holders can

amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Annex and the Note Purchase Agreement; (iv) any Purchaser may require the Facility Company to obtain the best available insurance comparable to the requirements of this Annex on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Facility Company to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

Any failure on the part of any Secured Party to pursue or obtain the evidence of insurance required by this Annex from the Facility Company and/or failure to point out any non- compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Annex.

Each liability insurance policy required pursuant to this Annex that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Execution Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Facility Company shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Facility Company may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement, unintentional errors & omissions in reporting and land and water decontamination but only to the extent permitted in Appendix 1 to this Annex. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Annex shall contain terms and conditions reasonably acceptable to the Required Holders following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of any Secured Party hereunder in respect of the Event of Default (as defined in the Note Purchase Agreement) which arises as a result of such failure) any Secured Party, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Facility Company of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Facility Company to the Secured Parties that provided such funding, and the Facility Company shall forthwith pay such amounts, together with interest on such amounts at the applicable Default Rate (as defined in the Note Purchase Agreement) from the date so advanced.

The Required Holders can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

The Required Holders shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Facility Company or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default (as defined in the Note Purchase Agreement). Neither the Facility Company nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Required Holders to the agreed settlement.

Each Purchaser may, pursuant to its rights and obligations under the Note Purchase Agreement and this Annex and the provisions therein, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

Terms used in this Annex, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

APPENDIX 1

“All-Risk” property form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of the Facility Company whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $27,500,000 and (b) 10% of the current aggregate replacement cost of the Project.

The policy shall provide cover in accordance with this Annex 3 for each System from the time no later than the time of delivery to the Facility Company in accordance with the terms of the A&R PUMA or such earlier time that the Facility Company has risk of loss. This cover shall include cover for installation, testing including hot testing and commissioning sufficient to cover planned testing and commissioning activities and any likely over-run of such activities.

Sub-limits are permitted with respect to the following perils:

•

For earthquake and flood a combined aggregate limit as commercially available but in no event less than $12,500,000

•

Unintentional Errors & Omissions, aggregated limit as commercially available but in no event less than $7,000,000

•

such other coverages customarily sub-limited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sub-limited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, named windstorm, pollution cleanup and flood), (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business Interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for not less than 12 months projected covered revenue loss less non-recurrent costs, minimum $5,000,000 and for an indemnity period of not less than 12 months for example:

if the main policy limit for property damage is 10% of the total portfolio replacement cost; then

the limit for business interruption shall be at least 10% of annual revenues for the portfolio over a 12 month indemnity period, minimum $5,000,000

Contingent business interruption shall be provided in accordance with prudent industry practice, minimum $5,000,000

Such policy may have per occurrence deductibles of not greater than One Hundred Thousand Dollars ($100,000) for all perils except (a) five percent (5%) of the value of property damaged by either earthquake or flood subject to a minimum of up to Two Hundred and Fifty Thousand Dollars ($250,000) and (b) [***] days for Business Interruption.

•

Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (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 involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Facility Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, 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 $100,000 for physical damage and other terms and conditions acceptable to the Required Holders and the Investor in consultation with the Insurance Consultant.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Annex.

•

General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

•

Property damage, death and injury (including mental injury).

•

Broad form property damage.

•

Blanket contractual.

•

Products/completed operations

•

Advertising injury

•

XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

•

Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

•

Workers’ Compensation and Employer’s Liability

If the Facility Company has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Facility Company is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Xxxxx Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Facility Company. Deductibles shall be the best commercially available in accordance with prudent industry practice.

•

Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

•

Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000, if so required by any Principal Facility Document) shall be attached and in excess of the underlying general liability, automobile liability, employers’ liability policies on a following form basis with drop down provisions.

•

Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability

$1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

•

Directors & Officers Insurance

Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000 This requirement may be satisfied by a corporate policy.

ANNEX 4

“Knowledge” Persons

[***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

[***] Confidential Treatment Requested

ANNEX 5

Third Party Consents and Approvals

None.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 6

Form of Company LLC Agreement

See Attached.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 6 (Form of Company LLC Agreement)

2014 ESA HOLDCO, LLC

A DELAWARE LIMITED LIABILITY COMPANY AMENDED AND RESTATED OPERATING AGREEMENT

DATED AS OF [ ], 2014

THE SECURITIES (MEMBERSHIP INTERESTS) REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER ANY SECURITIES OR BLUE SKY LAWS OF ANY STATE OR JURISDICTION. THEREFORE, THE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR THE APPLICABLE STATE SECURITIES OR BLUE SKY LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD TO THE PROPOSED TRANSFER OR, IN THE OPINION OF LEGAL COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT OR BLUE SKY LAWS IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.

TABLE OF CONTENTS


ARTICLE I DEFINITIONS			1

1.1. Certain Definitions			1
1.2. Other Definitional Provisions			13

ARTICLE II THE COMPANY			1

2.1. Continuation of Limited Liability Company			1
2.2. Name			1
2.3. Principal Office			1
2.4. Registered Office; Registered Agent			1
2.5. Purposes			1
2.6. Term			2
2.7. Title to Property			2
2.8. Units; Certificates of Membership Interest; Applicability of Article 8 of UCC			2

ARTICLE III CAPITAL CONTRIBUTIONS AND PAYMENTS			2

3.1. Class A Interests; Capital Contributions of the Class A Member			2
3.2. Class B Interests; Capital Contributions of the Class B Member			2
3.3. No Other Required Capital Contributions			3
3.4. No Right to Return of Capital Contributions			3

ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS			3

4.1. Capital Accounts			3
4.2. Profits and Losses			4
4.3. Special Allocations			4
4.4. Curative Allocations			6
4.5. Income Tax Allocations			6
4.6. Other Allocation Rules			7

ARTICLE V DISTRIBUTIONS			8

5.1. Distributions of Available Cash Flow			8
5.2. Limitation			8
5.3. Withholding			8
5.4. Satisfaction of Certain Obligations Under Article XI			9

ARTICLE VI MANAGEMENT			12

6.1. Managing Member			12
6.2. Standard of Care; Required Consents			12
6.3. Removal of Managing Member			16


6.4. Indemnification and Exculpation			16
6.5. Company Reimbursement			17
6.6. Additional Covenants			17

ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS			17

7.1. General			17
7.2. Member Voting Rights			17
7.3. Member Liability			17
7.4. Withdrawal			18
7.5. Member Compensation			18
7.6. Other Ventures			18
7.7. Confidential Information			18
7.8. ERISA Matters			21

ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS			22

8.1. Intent for Income Tax Purposes			22
8.2. Books and Records			22
8.3. Information and Access Rights			22
8.4. Reports			23
8.5. Permitted Investments			23
8.6. Tax Elections			24
8.7. Tax Matters Member and Company Tax Filings			25
8.8. Financial Accounting			27
8.9. Legend			27
8.10. Representations, Warranties and Covenants of the Class B Member			28
8.11. Representations, Warranties and Covenants of the Class A Member			29
8.12. Survival			30
8.13. No Breach of Obligations			30

ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION			30

9.1. Transfer and Encumbrances of Membership Interests			30
9.2. Buyout Option			34

ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION			35

10.1. Dissolution			35
10.2. Liquidation and Termination			36
10.3. Deficit Capital Accounts			37
10.4. Termination			38

ARTICLE XI INDEMNIFICATION			38

11.1. Indemnification of Class A Investor Group by the Class B Member			38
11.2. Indemnification of Class B Investor Group by the Class A Member			39
11.3. Brokers			39


11.4. Limitation on Liability			39
11.5. Procedure for Indemnification			40
11.6. Exclusivity			41
11.7. No Right of Contribution			41
11.8. Entire Agreement			41

ARTICLE XII GENERAL PROVISIONS			42

12.1. Offset			42
12.2. Notices			42
12.3. Counterparts			43
12.4. Governing Law and Severability			43
12.5. Entire Agreement			43
12.6. Effect of Waiver or Consent			43
12.7. Amendment or Modification			43
12.8. Binding Effect			44
12.9. Further Assurances			44
12.10. Jurisdiction; Service of Process			44
12.11. Limitation on Liability			44

EXHIBITS


Exhibit A		Capital Contributions Made

Exhibit B		Form of Membership Interest Certificate

2014 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

THIS AMENDED AND RESTATED OPERATING AGREEMENT, dated as of [ ], 2014, is made and entered into by and among EXELON GENERATION COMPANY, LLC, a Pennsylvania limited liability company (together with its permitted successors and assigns, the “Class A Equity Investor”), as the Class A Member, and CLEAN TECHNOLOGIES 2014, LLC, a Delaware limited liability company (the “Class B Equity Investor”), as the Class B Member.

RECITALS

A. 2014 ESA HoldCo, LLC, a Delaware limited liability company (the “Company”), was formed pursuant to the Act on November 12, 2013.

B. Prior to the Effective Date of this Agreement, the Class B Equity Investor owned 100% of the membership interests in the Company.

C. Concurrently herewith, pursuant to that certain Equity Capital Contribution Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Equity Capital Contribution Agreement”), between the Class A Equity Investor and the Class B Equity Investor, (i) the Class A Equity Investor has made an equity capital contribution to the Company and in consideration therefor has acquired a membership interest specified as a Class A Interest in the Company and is admitted as a Class A Member of the Company pursuant hereto, and (ii) the Class B Equity Investor has made an equity contribution to the Company and in consideration therefor the membership interest in the Company owned by the Class B Equity Investor has been converted into the membership interest specified as the Class B Interest in, and the Class B Equity Investor is hereby designated as the Class B Member of, the Company.

NOW, THEREFORE, in consideration of the premises and the mutual undertakings contained herein, the parties hereto hereby agree, and amend and restate the existing Limited Liability Company Agreement of the Company, dated as of November 12, 2013 (the “Prior LLC Agreement”) in its entirety as follows:

ARTICLE I

DEFINITIONS

1.1. Certain Definitions. Initially capitalized terms not defined in this Agreement shall have the meanings assigned such terms in the Equity Capital Contribution Agreement. The following initially capitalized terms, as and when used in this Agreement, shall have the following meanings:

“Act” means the Delaware Limited Liability Company Act, 6 Del. Code §§ 18 101 et seq., as amended from time to time, and any successor to such Act.

“Active Person” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in the Capital Account established and maintained for such Member, as the same is specially computed as of the end of each Taxable Year after giving effect to the following adjustments:

(i) Credit to such Member’s Capital Account any amounts which such Member elects to restore pursuant to Section 10.3 or is deemed obligated to restore pursuant to the penultimate sentences in Treasury Regulation Section 1.704-2(g)(1) and 1.704-2(i)(5); and

(ii) Debit to such Member’s Capital Account any items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently with such Regulation.

“Advisors” has the meaning set forth in Section 7.7(a).

“Affected Member” has the meaning set forth in Section 9.2(b).

“Agreement” means this Amended and Restated Operating Agreement, as amended, supplemented or restated from time to time pursuant to the provisions hereof.

“Annual Report” means the report delivered pursuant to Section 8.4(a).

“Appraisal Procedure” means, within fifteen (15) days of a party invoking the procedure described in this definition, the Class A Members and Class B Members shall engage a Qualified Appraiser, mutually acceptable to the Members, to determine the Fair Market Value of the Class A Interests.

“Available Cash Flow” means, with respect to any date of determination, the gross cash receipts from Company and Facility Company operations (including sales and dispositions of Company and Facility Company Assets), insurance payments, warranty payments, cash previously reserved and all Capital Contributions received from Members, in each case during the period beginning on the date the last cash distribution was made to Members and ending on such date of determination, less the portion thereof used to pay, or establish reserves for, all Company and Facility Company expenses (including amounts due and payable to the Class B Member or any Affiliate under the ASA and debt service obligations under the Financing Documents), and Company Reimbursable Expenses.

“Bid” has the meaning set forth in Section 9.1(d).

“Bloom Guarantee” means the limited guaranty made by Bloom Energy Corporation, a Delaware corporation, in favor of the Class A Equity Investor.

“Buyout Event” has the meaning set forth in Section 9.2(a).

“Buyout Exercise Notice” has the meaning set forth in Section 9.2(c).

“Buyout Price” has the meaning set forth in Section 9.2(d).

“Capital Account” means the capital account established and maintained for a Member pursuant to Section 4.1.

“Capital Contribution” means any cash or the Value of any other property (net of liabilities secured by such property that the Company is considered to assume or take subject to under Code Section 752) that a Member directly or indirectly contributes to the Company pursuant to Article III or has previously contributed to the Company.

“Cash Equivalents” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, which issues (or the parent of which issues) commercial paper rated as described in clause (c) below, which is organized under the laws of the United States or any State thereof and which has combined capital and surplus of at least $1,000,000,000 or (c) commercial paper issued by any corporation, other than an Affiliate of the Managing Member, organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Xxxxx’x Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

“Certified Public Accountant” means a firm of independent public accountants selected from time to time by the Managing Member and approved with the Consent of the Members. The initial Certified Public Accountant is PricewaterhouseCoopers LLP.

“Change of Member Control” means with respect to the Class B Member, an event (such as a Transfer of voting securities) that causes such Member to cease to be Controlled by such Member’s Member Parent; provided, however, that an event that causes such Class B Member’s Member Parent to be Controlled by another Person shall not constitute a Change of Member Control.

“Claims” means all claims, suits, demands, injunctions, actions, causes of action, assessments, cleanup and remedial obligations, judgments, awards, liabilities, losses (including amounts paid in settlement of claims), damages (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Third Party, but excluding any loss of profits, consequential, punitive, incidental or special damages asserted by any Member or an Affiliate), fines, fees, taxes, penalties, costs and expenses of every kind and character (including litigation costs and reasonable attorneys’ and experts’ fees and expenses, including such fees and expenses at trial and on any appeal).

“Class A Equity Investor” has the meaning set forth in the preamble.

“Class A Interest” means a Membership Interest issued pursuant to Section 3.1, which entitles the Holder thereof to receive the distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class A Interest under this Agreement.

“Class A Investor Claim” has the meaning set forth in Section 11.1.

“Class A Investor Group” has the meaning set forth in Section 11.1.

“Class A Member(s)” means each Person holding a Class A Interest. As of the Effective Date, the Class A Member means the Class A Equity Investor.

“Class A Unit” means a unit representing a Class A Interest having the rights, preferences and designations provided for such class in this Agreement.

“Class B Equity Investor” has the meaning set forth in the preamble.

“Class B Interest” means the Membership Interest issued pursuant to Section 3.2, which entitles the Holder thereof to receive distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class B Interest under this Agreement.

“Class B Investor Claim” has the meaning set forth in Section 11.2.

“Class B Investor Group” has the meaning set forth in Section 11.2.

“Class B Member” means the Person(s) holding a Class B Interest. Initially, and as of the Effective Date, the Class B Member means the Class B Equity Investor.

“Class B Unit” means a unit representing a Class B Interest having the rights, preferences and designations provided for such class in this Agreement.

“Company” has the meaning set forth in the recitals.

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” set forth in Treasury Regulation Section 1.704-2(b)(2) and will be determined as provided in Treasury Regulation Section 1.704-2(d).

“Company Reimbursable Expenses” means all reasonable Third Party costs and expenses (including legal, accounting and auditing fees) incurred either by the Managing Member on behalf of the Company or the Company on behalf of the Facility Company, in the performance of duties relating to the Company’s or the Facility Company’s activities or business, in accordance with this Agreement.

“Confidential Information” has the meaning set forth in Section 7.7(a).

“Consent of the Class A Members” means, at any time, the consent or approval of Class A Members who own in the aggregate more than fifty percent (50%) of the Class A Units outstanding at such time.

“Consent of the Class B Members” means, at any time, the consent or approval of Class B Members who own in the aggregate more than fifty percent (50%) of the Class B Units outstanding at such time.

“Consent of the Members” means each of (i) the Consent of the Class A Members and (ii) the Consent of the Class B Members.

“Consistent Return” has the meaning set forth in Section 8.7(a).

“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Damages” all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including without limitation, such fees and expenses at trial and on any appeal), of any nature whatsoever.

“Delaware Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on November 12, 2013, as amended or restated from time to time.

“Depreciation” means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an Asset for such period, except that if the Value of any Asset differs from its adjusted basis for federal income tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Value using any method selected by the Managing Member and reasonably acceptable to the Members.

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the Company or the Class B Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner

reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Member or (C) a Person to whom a Transfer of Membership Interests would cause a recapture of any ITC claimed by the Company with respect to a Facility pursuant to Section 50(a) of the Code.

“Effective Date” means the date of this Agreement.

“Emergency” means an event has occurred which the Managing Member reasonably believes requires imminent action to address and which, if not taken, could materially and adversely affect the Company or Facility Company including, but not limited to, acts of God, floods, earthquakes, lightning, ice and ice storms, hurricanes, tornadoes, other natural disasters or environmental catastrophes, fires, explosions, accidents, wars, riots, civil disturbances, blockades or acts of a public enemy.

“Equity Capital Contribution Agreement” has the meaning set forth in the recitals.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with the Company under section 414 of the Code.

“Escrow” has the meaning set forth in Section 5.4(e).

“Escrow Agent” has the meaning set forth in Section 5.4(e).

“Escrowed Funds” has the meaning set forth in Section 5.4(e)(i).

“Facility Company” means 2014 ESA Project Company, LLC, a Delaware limited liability company.

“Facility Debt” means non-recourse senior debt of the Facility Company from a lender or group of lenders reasonably satisfactory to Investor.

“Facility Documents” means, collectively, (i) the Principal Facility Documents or any agreement entered into in replacement or substitution of any such agreement and (ii) any other agreement (including, without limitation, any agreement to sell electricity or renewable energy credits) entered into by the Company or the Facility Company after the Effective Date having a term in excess of one (1) year and providing for payments by or to the Company or the Facility Company in excess of $100,000 per year.

“Fair Market Value” means, with respect to any Asset, 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 Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007- 65.

“Financing Documents” means the Note Purchase Agreement, security agreement, pledge agreement, depositary agreement and any other material agreement entered into in connection therewith between the Facility Company and each note purchaser party to the Note Purchase Agreement.

“Fiscal Year” means the calendar year, except that the initial Fiscal Year of the Company commenced on Effective Date and the final Fiscal Year of the Company shall end on the date on which the Company is terminated under Article X.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Holder” means any Member.

“Indebtedness” means indebtedness for borrowed money and any capital lease of any property as lessee, but expressly does not include short-term (i.e., less than one year in maturity) trade payables or operating leases incurred in the ordinary course of business.

“IRS” means the Internal Revenue Service and any successor Governmental Authority.

“ITC” means the investment tax credit under Section 48 of the Code.

“Licenses and Permits” means any filings with, and licenses, permits, approvals and authorizations from, any Governmental Authority, including Environmental Permits.

“Liquidating Events” has the meaning set forth in Section 10.1(a).

“Managing Member” means a Member appointed by the Members pursuant to Article VI to manage the affairs of the Company on their behalf and any other Person hereafter appointed as a successor Managing Member of the Company as provided in Article VI. Pursuant to its appointment by the Members in Section 6.1, the Class B Equity Investor shall be the initial Managing Member of the Company.

“Member ERISA Affiliate” means, with respect to each Member, any Person (whether or not incorporated) which is under common control with such Member within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with such Member under section 414 of the Code (excluding the Company or any of its other ERISA Affiliates).

“Member Nonrecourse Debt Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” set forth in Treasury Regulation Section 1.704-2(i)(2), and will be computed as provided in Treasury Regulation Section 1.704- 2(i)(3).

“Member Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

“Member Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Member Parent” means, with respect to a Member, the first company in the chain of ownership that directly or indirectly owns and Control such Member on the Effective Date or, if applicable, from and after the date of a Change of Member Control in accordance with Section 9.1(b)(iv), and that is itself not a special purpose entity (i.e., it owns meaningful (as measured by dollar value) assets in addition to its direct or indirect ownership interests in such Member.)

“Member” means those Persons who execute the signature page of this Agreement or otherwise agree to be bound hereby and are admitted to the Company as Members pursuant to this Agreement, excluding any Person (i) having solely the status of an assignee or (ii) that has ceased to be a Member.

“Membership Interest” as to any Member means the entire limited liability company interest and rights of that Member in the Company, including, without limitation, its right to a share of the profits, losses, deductions and credits of the Company and its right to a distributive share of the Assets of the Company in accordance with the provisions hereof. Membership Interests shall consist of Class A Interests and Class B Interests, each of which shall constitute a separate class of limited liability company interests, but shall not constitute a “series” for purposes of Section 18-215 of the Act.

“Moody’s” means Xxxxx’x Investor Service, or any successor entity.

“Multiemployer Plan” means, with respect to each Member, a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA), which is, or within the immediately preceding six years was, contributed to by such Member or any of its Member ERISA Affiliates.

“Nonrecourse Deductions” has the meaning given such term in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning given such term in Treasury Regulation Section 1.704-2(b)(3).

“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Facility Company and each note purchaser party thereto.

“Obligations” has the meaning given to such term in the Note Purchase Agreement.

“Offtaker” means each counterparty under each Power Purchase Agreement.

“Passive Investor” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

“Permitted Investment” has the meaning given to such term in Section 8.5.

“Plan” means, with respect to each Member, an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA (other than a Multiemployer Plan) that is or, within the immediately preceding six years, has been established or maintained, or to which contributions are or, within the immediately preceding six years, have been made or required to be made, by such Member or any of its Member ERISA Affiliates or with respect to which such Member or any of its Member ERISA Affiliates may have any liability.

“Prior LLC Agreement” has the meaning set forth in the recitals.

“Profits” and “Losses” means, for each Taxable Year or other period, an amount equal to the Company’s taxable income or loss for such Taxable Year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss;

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704 1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses pursuant to this definition, shall be subtracted from such taxable income or loss;

(iii) In the event the Value of any Company Asset is adjusted pursuant to subsections (ii) or (iii) in the definition of “Value”, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such Asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year or other period as determined in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation Section 1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Sections 4.3, 4.4, 4.5 and 4.6 shall not be taken into account in computing Profits or Losses (i.e., such items of income and gain will otherwise be subtracted from, and such items of loss and deduction will otherwise be added back to, “Profits” or “Losses”).

“Purchasing Member” has the meaning set forth in Section 9.2(c).

“Qualified Appraiser” means a nationally recognized third-party appraiser which shall (i) be qualified to appraise independent fuel cell electric generating businesses and/or experienced in such businesses in the general geographic region of the Facilities, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with any Member or any Affiliate thereof.

“Quarterly Period” means the three-month periods ending each April 1, July 1, October 1 and January 1; provided that the first Quarterly Period shall commence on the Effective Date and end on the last day of the calendar quarter in which the Effective Date occurs.

“Recapture Period” means the five year period beginning on the date that the last Facility is placed into service for federal income tax purposes.

“Regulatory Allocations” has the meaning set forth in Section 4.4.

“Representatives” has the meaning set forth in Section 7.7(a).

“S&P” means Standard & Poors Ratings Group, a division of McGraw Hill, Inc., or any successor entity.

“Securities” with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company). Whenever a reference herein to Securities refers to any derivative Securities, the rights of an Equity Investor shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Securities Act” means the Securities Act of 1933 or any successor statute, as amended from time to time.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Tax Information” has the meaning set forth in Section 7.7(b).

“Tax Matters Member” has the meaning set forth in Section 8.7(a).

“Tax Return” has the meaning set forth in Section 8.7(a).

“Taxable Year” means the taxable year of the Company for federal income tax purposes.

“Terminated Member” has the meaning set forth in Section 9.2(f).

“Termination Value” has the meaning assigned to such term in each applicable Power Purchase Agreement.

“Third Party” means a Person other than a Member or an Affiliate of a Member. “Third Party Payment” has the meaning set forth in Section 5.4(c).

“Title IV Plan” means, with respect to each Member, a Plan subject to Title IV of ERISA to which such Member or any of its Member ERISA Affiliates is, or within the immediately preceding six years was, an “employer” as defined in section 3(35) of ERISA.

“Transaction Documents” means this Agreement, the Equity Capital Contribution Agreement, the A&R PUMA and the ASA.

“Transfer” means, as to any Asset (including, without limitation, the Units), a sale, assignment, conveyance, gift, exchange, lease or other disposition or transfer of such Asset by a Member, whether effected voluntarily, involuntarily or by operation of Applicable Law (including, a merger, conversion or consolidation in which the Person owning such Asset is not the surviving entity).

“Transfer Notice” has the meaning set forth in Section 9.1(d).

“Transferee” means a Person to which a Transfer is made. “Transferring Member” means a Person making a Transfer.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“Underfunded Title IV Plan” means a Title IV Plan for which the aggregate benefit liabilities determined as of the end of such Title IV Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Title IV Plan in such Title IV Plan’s most recent actuarial statement exceeded the aggregate current value of the assets of such Title IV Plan.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the States of Delaware and New York.

“Units” means each of the Class A Units and Class B Units. Upon a Transfer by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Transferring Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Transferred multiplied by the total number of Units owned by the Transferring Member immediately prior to the Transfer.

“Value” means, with respect to any Asset of the Company, such Asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Value of any Asset contributed by a Member to the Company shall be the gross Fair Market Value of such Assets, as reasonably determined by the Managing Member with the Consent of the Members; provided, that the initial Value of the Assets contributed to the Company pursuant to Section 3.2 shall be the Appraised Value of Assets;

(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as reasonably determined by the Managing Member with the Consent of the Members, as provided within Treasury Regulation Section 1.704- 1(b)(2)(iv)(f); provided, however, that any such adjustments (other than pursuant to the liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) The Value of any Asset distributed to any Member shall be the gross Fair Market Value of such Asset on the date of distribution (taking Code Section 7701(g) into account), as the Managing Member shall reasonably determine, with the Consent of the Members;

(iv) The Value of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704- 1(b)(2)(iv)(m) (consistent with subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.3(f)); provided, however, that the Value shall not be adjusted pursuant to this clause (iv) to the extent the Members determine that an adjustment pursuant to clause (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv); and

(v) If the Value of an Asset has been determined or adjusted pursuant to clause (i), (ii) or (iv) of this definition, such Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

1.2. Other Definitional Provisions

(a) Construction. As used herein, singular shall include the plural, the masculine gender shall include the feminine and neuter, feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine unless the content otherwise indicates.

(b) References. References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Exhibits and Schedules are intended to refer to Exhibits and Schedules attached to this Agreement, each of which is made a part of this Agreement for all purposes. Information contained in any Schedule shall be deemed contained in each and every other schedule without requiring repetition thereof. The term “including” means “including, without limitation.” Any date specified for action that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include such Person’s permitted successors and assigns. Any reference to any document or documents shall be deemed to refer to such document or documents as amended, modified, supplemented or replaced from time to time. Whenever a Person is to determine that something is “satisfactory to,” “acceptable to,” or “to the satisfaction of” such Person, the determination may not be made in bad faith.

ARTICLE II

THE COMPANY

2.1. Continuation of Limited Liability Company. The parties hereto hereby continue the Company formed on November 12, 2013, as a limited liability company pursuant to the Act. The rights and obligations of the Members shall be as provided in the Act, except as otherwise expressly provided herein. The Managing Member shall from time to time execute or cause to be executed all such certificates, instruments and other documents, or cause to be done all such filings, as the Managing Member may deem necessary or appropriate to operate, continue or terminate the Company as a limited liability company under the laws of the State of Delaware and to qualify the Company to do business in such states where such qualification is necessary or desirable.

2.2. Name. The name of the Company is, and the business of the Company shall continue to be conducted under the name of 2014 ESA HoldCo, LLC or such other name or names as the Managing Member may designate from time to time, with the Consent of the Members. The Managing Member shall take any action that it determines is required to comply with the Act, assumed name act, fictitious name act, or similar statute in effect in each jurisdiction or political subdivision in which the Company proposes to do business and the Members agree to execute any documents requested by the Managing Member in connection with any such action.

2.3. Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

2.4. Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000. The address of the Company’s registered office in the State of Delaware is c/o Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.

2.5. Purposes. The purpose of the Company is to own the Facility Company, which will develop, own, operate, maintain and repair the Facilities, for the purpose of producing electricity; to cause the Facility Company to sell electricity and renewable energy credits produced by the Facilities; to enter into, comply with, perform its obligations and enforce its rights, and cause the Facility Company to enter into, comply with, perform their obligations and enforce their rights, under this Agreement and the Facility Documents; and to engage in and perform any and all activities necessary, incidental, related or desirable to allow the Facility Company, to produce and sell electricity and renewable energy credits from the Facilities. The Company shall not engage in any activity or own any Assets that are not directly related to the Company’s purpose as set forth in this Section 2.5. The Company shall not allow the Facility Company to engage in any activity or own any Assets other than as required in connection with the Facility Company’s ownership and operation of the Facilities.

2.6. Term. The Company’s existence shall be perpetual, unless earlier dissolved and terminated in accordance with this Agreement.

2.7. Title to Property. Title to Company or Facility Company Assets, as applicable, whether tangible or intangible, shall be held in the name of the Company or the Facility Company, as applicable, and no Member, individually, shall have title to or any interest in such property by reason of being a Member. Membership Interests of each Member shall be personal property for all purposes.

2.8. Units; Certificates of Membership Interest; Applicability of Article 8 of UCC. Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Interests) and Class B Units (in the case of Class B Interests). The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, preferences and designations ascribed to such Units in this Agreement. The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code. All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit B, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine.

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

3.1. Class A Interests; Capital Contributions of the Class A Member. On the Effective Date, and each Funding Date thereafter, the Class A Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In consideration of such Capital Contributions, on the Effective Date, the Class A Member shall be issued Class A Units in the amount set forth opposite its name in Exhibit A and be admitted to the Company as a Class A Member. The Class A Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class A Member in this Agreement. The Class A Member’s Capital Account balance as of the Effective Date and each Funding Date thereafter with respect to its Membership Interest shall be as indicated on Exhibit A hereto.

3.2. Class B Interests; Capital Contributions of the Class B Member. On the Effective Date, and each Funding Date thereafter, the Class B Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In addition, the Class B Member shall hold Class B Units in the amount set forth opposite its name in Exhibit A. The Class B Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class B Member in this Agreement. The Class B Member’s additions to its Capital Account as of the Effective Date and each Funding Date thereafter (and the Class B Member’s Capital Account as of the Effective Date and each Funding Date thereafter) are shown on Exhibit A hereto, which amounts include the Value of property contributed by the Class B Member to the Company prior to and on such dates.

3.3. No Other Required Capital Contributions. Except as provided in Sections 3.2 and 5.4(c), no Member shall be obligated to make Capital Contributions in excess of the amount of such Member’s required Capital Contribution made on the Effective Date or any additional Funding Date thereafter.

3.4. No Right to Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member may require a return of its Capital Contributions or the payment of interest thereon from the Company or from another Member.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1. Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-l(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited the Member’s Capital Contributions, such Member’s distributive share of Profits and items of income and gain under Section 4.2 and any items in the nature of income or gain which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any Company liabilities assumed by the Member or which are secured by any Company Asset distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Value of any Company Asset distributed to such Member pursuant to any provision of this Agreement or the Equity Capital Contribution Agreement, such Member’s distributive share of Losses and items or loss and deduction under Section 4.2 and any items of loss and deduction which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of the foregoing subsections (a) or (b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Treasury Regulations.

(d) In the event any Membership Interest in the Company is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Membership Interest.

This Section 4.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations. The Managing Member also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q).

4.2. Profits and Losses. For purposes of maintaining Capital Accounts, after making the allocations provided under Section 4.3, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows:

(a) General Allocations. Except as provided in the following subsection (b) of this Section 4.2, Profits and Losses and constituent items of Company income, gain, loss, and deduction thereof shall be allocated for each Fiscal Year or part of a Fiscal Year, 90% to the Class A Members pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(b) Items in Connection with Liquidation. Except as provided in the following subsection (c) of this Section 4.2, Profits and Losses and any other items of income, gain, loss or deduction, credits (including any ITCs) and any credit recapture (including any ITC recapture) for the Taxable Year in which there is a disposition of all or substantially all of the Assets of the Company pursuant to Section 10.2(a)(iii) shall be specially allocated pursuant to Section 10.2(a)(iv) and Section 10.2(a)(v).

(c) Allocation of ITC. It is the intention of the Members that both (i) the allocations provided in Section 4.2(a) constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(i), the ratio in which the Members divide the general profits of the Company (that is, the taxable income of the partnership as described in Code Section 702(a)(9)) regardless of whether the Company has a profit or a loss for its Taxable year during which the Facility with respect to which the ITC is claimed is placed in service for federal income tax purposes, and (ii) the allocations provided in Section 4.2(a), constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(ii), the allocation of all related items of income, gain, loss and deduction with respect to each item in respect of the Facility with respect to which the ITC is claimed. Accordingly, the Members’ shares of the basis of the Facility with respect to which the ITC is claimed shall be determined by reference to such general profits ratio under Treasury Regulations Section 1.46-3(f)(2)(i), and under the special allocation under Treasury Regulations Section 1.46- 3(f)(2)(ii), as 90% to the Class A Members, pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

4.3. Special Allocations. The following special allocations shall be made in the following order:

(a) Company Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any Taxable Year, each Member shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated

shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Sections 1.704- 1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible; provided, that an allocation pursuant to this Section 4.3(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other special allocations provided for in this Section 4.3 have been tentatively made as if this Section 4.3(c) were not in this Agreement.

(d) Loss Limitations. Losses allocated pursuant to Section 4.2 and Section 10.2(a)(v) shall not exceed the maximum amount of Losses and other items of loss or deduction that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Taxable Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 or Section 10.2(a)(v), the limitation set forth in this Section 4.3(d) shall be applied on a Member by Member basis and Losses and items of loss or deduction not allocable to any Member as a result of such limitation shall be allocated to the other Members in the manner otherwise required pursuant to Section 4.2 and Section 10.2(a) to the extent such other Members have positive balances in their Capital Accounts so as to allocate the maximum permissible Losses to each Member under Treasury Regulation Section 1.704-1(b)(2)(ii)(d).

(e) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Taxable Year that is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to Section 10.3 of this Agreement and (ii) the amount such Member is deemed obligated to restore pursuant to the penultimate sentences of Treasury Regulation

Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 4.3(e) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other special allocations provided for in this Section 4.3 have been made as if Section 4.3(c) and this Section 4.3(e) were not in this Agreement.

(f) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Members 90% to the Class A Members, pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(g) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(h) Section 754 Adjustments. If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, such that the first sentence of Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2), then solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in accordance with Section 4.2, as in effect at the time of the adjustment. This provision is intended to comply with Treasury Regulation Sections 1.704-1(b)(2)(iv)(m)(2) and (4).

4.4. Curative Allocations. The allocations required under Section 4.3(a) through (c), (e) and (f) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provisions of this Article IV, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss, deduction and credit among the Members such that, to the extent possible, the net amount of allocations of such items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each Member if the Regulatory Allocations had not occurred and all Company items were allocated pursuant to Section 4.2, Section 10.2(a)(iv) and Section 10.2(a)(v).

4.5. Income Tax Allocations.

(a) Except as otherwise provided in this Section 4.5, for federal, state and local income tax purposes each item of income, gain, loss and deduction of the Company shall be allocated to the Members in the same manner as such items are allocated for book purposes pursuant to this Article IV.

(b) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Value (computed in accordance with the definition of Value) using the remedial allocation method permitted by Treasury Regulation Section 1.704- 3(d).

(c) In the event the Value of any Company Asset is adjusted pursuant to subparagraph (ii) of the definition of Value, subsequent allocations of income, gain, loss, and deduction with respect to such Asset shall take account of any variation between the adjusted basis of such Asset for federal income tax purposes and its Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder.

(d) Any items of loss or deduction attributable to property contributed by a Member shall to the extent of an amount equal to the excess of (A) the federal income tax basis of such property at the time of its contribution over (B) the Value of such property at such time, be allocated in its entirety to such contributing Member and the tax basis of such property for purposes of computing the amounts of all items allocated to any other Member (including a transferee of the contributing Member) shall be equal to its Value.

(e) Allocations pursuant to this Section 4.5 are solely for federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

4.6. Other Allocation Rules.

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(b) The Members are aware of the income tax consequences of the allocations made by this Article IV and Section 10.2(a) and hereby agree to be bound by the provisions of this Article IV and Section 10.2(a) in reporting their shares of Company income and loss for income tax purposes, unless otherwise required by law or the IRS.

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above.

(d) To the extent permitted by Treasury Regulation Section 1.704-2(h)(3), the Managing Member shall endeavor to treat distributions of Available Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

ARTICLE V

DISTRIBUTIONS

5.1. Distributions of Available Cash Flow.

(a) Subject to Article Two of the Equity Capital Contribution Agreement and Sections 6.6(a) and 10.2(a)(vi), Available Cash Flow shall be distributed for each Quarterly Period to the Members, in the following percentages:

(i) 90% of Available Cash Flow shall be distributed to the Class A Members pro rata in accordance with their respective Class A Units; and

(ii) 10% of Available Cash Flow shall be distributed to the Class B Members pro rata in accordance with their respective Class B Units.

(b) Notwithstanding Section 5.1(a),

(i) all Available Cash Flow attributable to a payment by Seller to the Company pursuant to Section 3.2(c) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class A Members, pro rata in accordance with their respective Class A Units;

(ii) all Available Cash Flow or other amount equal to any payment by Seller to the Company pursuant to Sections 2.2(d)(x) and 3.2(d)(x) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class A Members, pro rata in accordance with their respective Class A Units; and

(iii) all Available Cash Flow or other amount equal to any payment by Seller to the Facility Company pursuant to Sections 2.2(d)(y) and 3.2(d)(y) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class B Members, pro rata in accordance with their respective Class B Units.

5.2. Limitation. The distributions described in this Article V shall be made only from Available Cash Flows and only to the extent that there shall be sufficient Available Cash Flows to enable the Managing Member to make payments in accordance with the terms hereof. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of Membership Interest if such distribution (including a return of Capital Contributions) would violate the Act or any other Applicable Law.

5.3. Withholding. Notwithstanding any other provision of this Agreement, the Company shall be entitled to comply with any withholding requirements under any Applicable Law and shall be entitled to remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any

amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

5.4. Satisfaction of Certain Obligations Under Article XI.

(a) Upon receipt of a notice of a Class A Investor Claim pursuant to Section 11.1, Section 11.3 or Section 11.4 , any Class B Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class A Investor Claim. Within [***] following receipt of such notice, the Class B Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class B Members agree with or dispute all or a portion of such Class A Investor Claim, specifying the amount, if any, so agreed to. If the Class B Members do not deliver such notice within the time specified, the Class B Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class A Investor Claims disputing the entire amount of such Class A Investor Claim.

(b) Upon receipt of a notice of a Class B Investor Claim pursuant to Section 11.2, any Class A Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class B Investor Claim. Within [***] following receipt of such notice, the Class A Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class A Members agree with or dispute all or a portion of such Class B Investor Claim, specifying the amount, if any, so agreed to. If the Class A Members do not deliver such notice within the time specified, the Class A Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class B Investor Claims disputing the entire amount of such Class B Investor Claim.

(c) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts and it is finally determined by a court of competent jurisdiction, after exhaustion of all time periods for appeal, that such Damages resulted from a breach by the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Class A Equity Investor, the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this Agreement or any Transaction Documents (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members or Class A Members, as applicable, deliver or are deemed to have delivered their notice under Section 5.4(a) and Section 5.4(b), as applicable, the Class B Members or the Class A Members, as applicable, shall make a Capital Contribution to the Company in an amount equal to the full amount of the

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Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members or the Class A Members, as applicable, and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(d) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is [***] following the date that the indemnifying Members agree with the asserted claim, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(d) or as otherwise paid by the indemnifying Members or any of their Affiliates, (1) any distributions as to which the indemnifying Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such indemnifying Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). In the event that (A) the distributions payable to the indemnifying Members and their respective Affiliates or the Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates, in each case, for a Quarterly Period are not sufficient to pay the Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), as applicable, or (B) such Damages have not otherwise been paid to the relevant indemnified parties within [***] of the end of a Quarterly Period, then the indemnifying Members shall pay such Damages to the relevant indemnified parties within [***] of the end of such Quarterly Period. Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims or Class B Investor Claims for Damages and the application of Section 5.5.

(e) If the indemnifying Members or their respective Affiliates dispute all or a portion of any Damages in excess of [***] then any Capital Contributions that the indemnifying Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the indemnifying Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial

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bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least $1,000,000,000 (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

(i) funds paid into such Escrow shall be invested in Cash Equivalents (such escrowed funds together with the earnings thereon being referred to herein as the “Escrowed Funds”);

(ii) Escrowed Funds shall be disbursed by the Escrow Agent as follows:

(A) Upon the Escrow Agent’s receipt of a written notice from the indemnifying Members or their Affiliates, as applicable, and the applicable indemnified Persons, the Escrow Agent shall disburse Escrowed Funds to the party or parties, and in the amount or amounts, specified in such joint written notice; and

(B) Upon receipt by the Escrow Agent of a judgment or order of a court of competent jurisdiction regarding all matters relating to such Class A Investor Claims or Class B Investor Claims, as applicable, and, if there exists a right of appeal therefrom, the expiration of the time for appealing such judgment or order without appeal of such judgment or order by any party, the Escrow Agent shall disburse the Escrowed Funds as specified in or consistent with such judgment or order.

(iii) The indemnifying Members or their Affiliates shall pay the Escrow Agent’s fees and charges related to the Escrow unless the amount finally determined to be payable to the indemnified Persons pursuant to subclauses (A) or (B) above is less than [***] of the amount claimed by the indemnified Persons, in which case, the indemnified Persons making the Class A Investor Claims or Class B Investor Claims, as applicable, shall bear all of the Escrow Agent’s fees and charges.

(f) Amounts paid or distributed to the indemnified Persons pursuant to this Section 5.4 shall be deemed distributed to the indemnifying Members and immediately paid by the indemnifying Members to the applicable indemnified Person. Such amount shall be grossed up and paid on an after-tax basis (assuming the highest marginal federal income tax rates then applicable to corporations and an assumed combined state and local income tax rate of [***] for purposes of a gross up).

(g) The Members, for themselves, their Affiliates, successors and permitted assigns, agree that, notwithstanding anything to the contrary herein or in any other agreement, (i) except as hereinafter provided, the provisions of this Section 5.4 and Article XI shall be the indemnified Persons’ sole and exclusive means of recovery in respect of this Agreement, the Equity Capital Contribution Agreement and the ASA for such Damages, and (ii) the indemnified Persons will not bring any action or proceeding, or take any other action, to recover any such Damages except as provided by this Section 5.4 and Article XI.

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ARTICLE VI

MANAGEMENT

6.1. Managing Member.

(a) The Class B Equity Investor is hereby appointed by the Members as the initial Managing Member of the Company. Except as provided in Section 6.2 or as otherwise expressly provided herein, the Managing Member shall conduct, direct and exercise control over all activities of the Company, and shall have full power and authority on behalf of the Company to manage and administer the business and affairs of the Company and to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company (including, without limitation, taking all necessary actions to cause the Company to, and to cause the Company to cause the Facility Company to, perform their respective obligations and enforce their respective rights under the Facility Documents to which it is a party and to otherwise carry out their respective purposes) without the need for approval by or any other consent from any Member, including, but not limited to, the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business. Except to the extent that a Member is also the Managing Member or authority is delegated from the Managing Member, no Member shall have any authority to bind the Company.

(b) Notwithstanding any other provision of this Article VI, in the event of the occurrence of an Emergency, the Managing Member will be entitled, without having to obtain the consent of any other Member, to cause the Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices, in order to protect the interests of the Company or the Facility Company, or as required by Applicable Law (including causing the Facility Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices).

6.2. Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facility and cause the Administrator to operate and manage the Facility, in accordance with the Facility Documents; provided, that, in performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards and (ii) in instances not involving the operation or management of the Facility, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company. Upon the occurrence of an “Event of Default” (as defined in the ASA) by the Administrator under the ASA that remains uncured for a period of [***] days, the Class A Members may cause the Company or the Facility Company, as applicable, to enforce their respective rights under the ASA.

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(b) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Do any act in contravention of this Agreement or of the organizational documents of the Facility Company;

(ii) Cause the Company to engage in any business or activity that is not within the purpose of the Company or to change such purpose, or cause the Facility Company to engage in any business or activity that is not within the purpose of the organizational documents of the Facility Company or cause the Facility Company to change such purpose;

(iii) Cause the Company to be treated other than as a partnership for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association) or cause the Facility Company to be treated as anything other than a disregarded entity for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association taxable as a corporation);

(iv) Make any tax election, or cause either the Company or the Facility Company to make any tax election, other than as provided in this Agreement;

(v) Admit any additional Member to the Company except as permitted under this Agreement, or cause any additional member to be admitted to the Facility Company except upon the exercise by the lenders of their rights under the Financing Documents to foreclose on the Facility Company’s membership interests;

(vi) Any sale, lease or other voluntary disposition of any membership interest in the Facility Company;

(vii) Cause the Company or the Facility Company to permit (A) possession of property of the Company or the Facility Company, as applicable, by any Member (unless such action is taken pursuant to the express terms of the Facility Documents), (B) the assignment, transfer or pledge of rights of the Company or the Facility Company in specific property of the Company or the Facility Company, as applicable, for other than a Company or Facility Company purpose or other than for the benefit of the Company or the Facility Company, or (C) any commingling of the funds of the Company or the Facility Company with the funds of any other Person;

(viii) Causing or permitting the Company or the Facility Company to take or file any action or institute any proceedings in bankruptcy, or consent to any such filing or proceeding;

(ix) (i) Any issuance or redemption by the Company of any membership units or other equity interests of any kind in the Company; (ii) any issuance or redemption by the Facility Company of any membership interests or other equity interests of any kind in the Facility Company; or (iii) any sale or issuance of any option, warrant or similar right to acquire any interest of any kind in either the Company or the Facility Company, in each case except as expressly provided for in this Agreement;

(x) (i) Any merger, conversion or consolidation of either the Company or the Facility Company, or any sale of all or substantially all of the assets of either the Company or the Facility Company; (ii) either the Company or the Facility Company acquiring all or substantially all of the assets or stock of any person; (iii) changing either the Company’s or the Facility Company’s legal form; (iv) recapitalizing either the Company or the Facility Company; or (v) liquidating, winding-up or dissolving either the Company or the Facility Company, in each case except as expressly permitted under this Agreement;

(xi) Causing or permitting either the Company or the Facility Company to take any of the following actions;

(A) amend, modify or waive in any material respect, cancel or terminate any Facility Documents (for the avoidance of doubt, the Managing Member may, without the Consent of the Class A Members, cause or permit either the Company or the Facility Company to amend any of the Facility Documents to allow for the addition, removal or modification of sites so long as such amendment could not reasonably be expected to have a material adverse effect on the performance of the Company as contemplated by the Base Case Model);

(B) assign, release, relinquish, consent to any departure from, or waive the rights or obligations of any party to any Facility Documents, except for any such actions which are not material or which are taken in the ordinary course of business;

(xii) (i) terminating the ASA, or entering into a new or replacement agreement in place of the ASA, except, in each case, to the extent expressly set forth in the terms of this Agreement; (ii) terminating the A&R PUMA, or entering into a new or replacement agreement in place of the A&R PUMA, except, in each case, to the extent expressly set forth in this Agreement; or (iii) providing any consent, approval or waiver that would allow the waiver of any material rights of either the Company or the Facility Company;

(xiii) Allowing or granting any lien on the assets or rights of either the Company or the Facility Company, other than Permitted Encumbrances;

(xiv) Causing or permitting either the Company or the Facility Company to (i) make loans to third parties or (ii) repay (other than repayments in accordance with scheduled maturity or which are otherwise mandatory pursuant to the terms of any Financing Documents), voluntarily prepay or redeem, or refinance or modify any of the terms of, any indebtedness of either the Company or the Facility Company;

(xv) Except as provided in the Financing Documents and the Facility Documents, borrow, or cause the Company or the Facility Company to borrow, any money in the name or on behalf of the Company or the Facility Company, as applicable, or execute and issue promissory notes and other negotiable or non- negotiable instruments and evidences of indebtedness, except the Managing Member may borrow, or cause the Company or the Facility Company to borrow money in the name and on behalf of the Company or the Facility Company, as applicable, in such amounts as the Managing Member shall reasonably determine are necessary to comply with all applicable environmental laws, ordinances, rules and regulations;

(xvi) Except as provided in the Financing Documents and the Facility Documents and except for Permitted Encumbrances, mortgage, pledge, assign in trust or otherwise encumber, or cause the Company or the Facility Company to mortgage, pledge, assign in trust or otherwise encumber, any Company or Facility Company property, or to assign, or cause the Company the Facility Company to assign any monies owing or to be owing to the Company or the Facility Company except to secure the payment of any borrowing permitted hereunder and except for customary liens contained in or arising under any operating agreements, construction contracts and similar agreements executed by or binding on the Company or the Facility Company with respect to amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP) or except for statutory liens for amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP), provided that in no event shall the Managing Member mortgage, pledge, assign in trust or otherwise encumber the Company’s right to receive Capital Contributions from the Members;

(xvii) Sell, lease, transfer, assign or distribute any interest in the Facility Company or cause the Company or the Facility Company to sell, lease, transfer, assign or distribute (A) any Facility or (B) any Asset or related group of Assets with a Fair Market Value in excess of [***] in one or a related series of transactions, except, in the case of each of clauses (A) and (B), pursuant to the Power Purchase Agreements or pursuant to the A&R PUMA;

(xviii) Enter into, or cause the Company or the Facility Company to enter into: (A) any material amendment, modification, waiver or termination of any agreement with an Affiliate of the Managing Member; (B) any substitution or replacement of any Facility Document or any agreement with an Affiliate, (C) any additional Facility Document or agreement with an Affiliate (it being understood that the Class A Member shall have the opportunity to review and make reasonable comments with respect to any subsequent Power Purchase Agreements, if any, that are proposed to be entered into); or

(xix) Take, or cause the Company or the Facility Company to take, any System(s) out of service, except as permitted pursuant to the terms of the A&R PUMA or the Power Purchase Agreements.

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Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions.

(c) Prior to the dissolution of the Company under the terms of this Agreement, the Managing Member shall devote such time and effort to the Company’s business as may be necessary to adequately promote the interests of the Company and the mutual interests of the Members.

(d) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility if so required pursuant to the terms of Section 3.2(c), 5.7(b), 12.3 or 12.7(b) of the A&R PUMA.

6.3. Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon [***] days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, (y) has breached any material duty, obligation or covenant of this Agreement or caused the Company or the Facility Company to breach any material duty, obligation or covenant of any Facility Document, or (z) is declared Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within [***] days of receiving notice of such breach (which thirty (30) day period shall run concurrently with the required notice period); provided, further, that if such breach or violation cannot be cured within such period, and so long as the Managing Member is proceeding with diligence to cure such breach, the thirty (30) day cure period shall be extended by an additional [***] days, for a total cure period of [***] days.

(b) If the Managing Member is so removed, the Consent of the Members shall be required to elect a successor Managing Member to succeed to all the rights, and to perform all of the obligations, set forth for the Managing Member hereunder.

6.4. Indemnification and Exculpation.

(a) To the fullest extent permitted by Applicable Law, the Managing Member and its respective officers, directors, employees and agents shall be exculpated from, and the Company shall indemnify such Persons from and against, all Claims any of them incur by reason of any act or omission performed or omitted by such Person in a manner that is consistent with its rights and obligations under Applicable Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the gross negligence, willful misconduct or fraud of such Person or a breach by the Managing Member or the Class B Member or any Affiliate thereof of its covenants or representations set forth in any Investment Document or any Facility Document.

(b) To the fullest extent permitted by Applicable Law, expenses to be incurred by an indemnified Person under this Section 6.4 shall, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking from a Person with sufficient credit capacity to repay such amount if it shall be determined that the indemnified Person is not entitled to be indemnified under this Agreement.

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6.5. Company Reimbursement. The Company shall directly pay and reimburse the Managing Member for all Company Reimbursable Expenses incurred from time to time.

6.6. Additional Covenants. The Managing Member shall cause the Facility Company to distribute to the Company any System in respect of which an Offtaker has made a payment of Termination Value pursuant to the relevant PPA; provided that the Facility Lenders shall have first released their lien on such System. Following any such distribution of a System to the Company, the Company shall cause such System to be remarketed by the Administrator pursuant to the ASA. If such System is sold following such remarketing, the proceeds of such sale shall first be paid to such Offtaker to the extent required pursuant to the relevant terms of the applicable Power Purchase Agreement. Any remaining sale proceeds shall be considered “Available Cash Flow” and shall be distributed to the Members in accordance with Section 5.1.

ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

7.1. General. The rights and responsibilities of the Members shall be as provided in the Delaware Certificate, this Agreement and the Act.

7.2. Member Voting Rights. Except as provided in Sections 6.2(b), and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected thereby, no such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b) or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

7.3. Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether

to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

(b) A Member shall be liable only to make its Capital Contributions as provided herein and in the Equity Capital Contribution Agreement and shall not be required to restore a deficit balance in its Capital Account, except as provided in Section 10.3. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members or the Managing Member for liabilities of the Company.

7.4. Withdrawal. Except as otherwise provided in this Agreement, no Member shall be entitled to: (i) voluntarily withdraw from the Company; (ii) withdraw any part of such Member’s Capital Contributions from the Company; (iii) demand the return of such Member’s Capital Contributions; or (iv) receive property other than cash in return for such Member’s Capital Contribution.

7.5. Member Compensation. No Member shall receive any interest, compensation or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement or the ASA.

7.6. Other Ventures. Notwithstanding any other provision of this Agreement or any duty existing at law or in equity, the Members (including the Managing Member) and their respective Affiliates at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, including other business ventures competitive with, or of the same type and description as, the Company and the Facility Company, independently or with others.

7.7. Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facility, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively, “Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this

Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates, such Member may disclose Confidential Information provided that in such case such Member shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) The foregoing obligations shall not apply to the tax treatment or tax structure of the transactions contemplated hereby and each Member (and any employee, representative, or agent of any Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all other materials of any kind (including opinions or other tax analysis) that are provided to any Member relating to such tax treatment and tax structure (all such information that may be disclosed being the “Tax Information”). However, any such Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The preceding sentences are intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Sections 1.6011-4(b)(3) and 301.6111- 2(a)(2)(ii) (or any successor provision) of the Treasury Regulations issued under the Code and shall be construed in a manner consistent with such purpose. For purposes of this provision, the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the transactions contemplated hereby and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any Company, any Member or the Class B Equity Investor (or potential member), or any other third parties involved in any of the transactions contemplated hereby or any other potential transactions with any of the foregoing.

(c) Except as otherwise permitted by this Section 7.7, no Member shall include in a press release or otherwise disclose (other than as required to be included in a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member, its affiliates, permitted transferees, any security exchange or the Securities Exchange Commission or as required by Applicable Law) the name of any Member as an equity investor or potential equity investor without the prior written consent of such Member which consent shall not be unreasonably withheld.

(d) If the Company or any subsidiary thereof is required at any time to make any regulatory filing that identifies by name, or otherwise relates specifically to, any Member or any of its Affiliates or permitted transferees, then the Company shall submit (or the Company shall cause its subsidiary to submit) an advance draft of such regulatory filing to such Member or its Affiliate or permitted transferee, as applicable, and each such Member shall cooperate and shall provide such information as is necessary to complete such filing. Such Member (or its Affiliate or permitted transferee, as applicable) shall have the right to provide comments to such regulatory filing as it relates to such Member (or its Affiliate or permitted transferee), and the Company or its subsidiary shall incorporate or accommodate, prior to submitting such filing, such comments.

(e) If any Member is required at any time to make any regulatory filing (other than a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member or its affiliates) that identifies by name, or otherwise relates specifically to, any other Member, then such Member shall submit an advance draft of the relevant portions of such regulatory filing to such other Member. Such other Member shall have the right to provide comments to such regulatory filing as it relates to such other Member, and the Member making such filing shall incorporate or accommodate, prior to submitting such filing, such comments.

7.8. ERISA Matters. The covenants set forth this Section 7.8 apply only to a Class A Member during the time that such Class A Member is an ERISA Affiliate.

(a) Each Class A Member shall deliver to the Company promptly, and in any event within [***] Business Days after the Class A Member becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Class A Member or its Member ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; provided, however, that the notice to the Company under this Section 7.8(a)(i) with respect to such reportable event shall be timely if it is provided within [***] Business Days after the earlier of the filing of the notice with the Pension Benefit Guaranty Corporation with respect to such event or the due date for the filing of such notice with the Pension Benefit Guaranty Corporation; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC in writing of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan, or the receipt by any Member ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could reasonably be expected to result in the incurrence of any liability by any Member ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans which has not been satisfied, or in the imposition of any lien on any of the rights, properties or assets of any Member ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or lien, taken together with any other such liabilities or liens then existing, could reasonably be expected to have a Material Adverse Effect.

(b) No Class A Member or any of its Member ERISA Affiliates shall (i) permit any Title IV Plan to fail to satisfy the minimum funding standards of ERISA or section 412 of the Code, (ii) seek a waiver of the minimum funding standards of ERISA or an extension of any amortization period under section 412 of the Code, (iii) file with the PBGC a notice of intent to terminate any Title IV Plan in a distress termination described in section 4041(c) of ERISA, (iv) permit a Title IV Plan funding to have an “at risk” status within the meaning of section 430(i) of the Code, (v) incur any material liability pursuant to Title IV of ERISA (other than for PBGC premiums due but not delinquent) or the penalty or excise tax provisions of the Code relating to employee benefit plans (or take or fail to take any action that is reasonably expected to result in the incurrence of any such liability), or (vi) withdraw from any Multiemployer Plan; unless any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would not reasonably be expected to have a Material Adverse Effect. In addition, no Class A Member or any of its Member ERISA Affiliates shall permit the aggregate “amount of unfunded benefit liabilities” (within the meaning of section

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4001(a)(18) of ERISA) under all Underfunded Title IV Plans, determined in accordance with Title IV of ERISA, to exceed the aggregate current value of the assets under all Underfunded Title IV Plans by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect.

ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

8.1. Intent for Income Tax Purposes. The Members intend that the Company be treated as a partnership for federal, state and local income tax purposes and that it be operated in a manner consistent with such treatment, but that the Company not be operated or treated as a “partnership” for any other purpose, including, but not limited to, Section 303 of the Federal Bankruptcy Code, and the provisions of this Agreement may not be construed to suggest otherwise. The Members intend that the Facility Company be treated as a disregarded entity for federal, state and local tax purposes.

8.2. Books and Records. The Company’s books of account shall be prepared and maintained in accordance with generally accepted accounting principles for the type of business of the Company. The Managing Member shall cause to be kept, at the principal place of business of the Company, full and proper ledgers and other books of account of all receipts and disbursements and other financial activities of the Company, including the following documents:

(a) A copy of the certificate of formation of the Company and the Facility Company and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;

(b) Copies of the Company’s and the Facility Company’s federal, state and local income tax or information returns and reports (including any information or reports pertaining to any tax elections made by the Company or the Facility Company), if any, for the three (3) most recent Taxable Years of the Company; thereto;

(d) Copies of the constituent documents in respect of the Facility Company;

(e) Financial statements, including a consolidated balance sheet and consolidated statements of income (or loss), of the Company and its consolidated subsidiaries for, to the extent applicable, each of the three (3) most recent Fiscal Years, including quarterly and monthly internal consolidated financial statements of the Company; and

(f) The Company’s books and records for at least the current and, to the extent applicable, the past three (3) Fiscal Years.

8.3. Information and Access Rights. The Members and their respective agents will have the right, at their sole risk and expense and upon reasonable prior notice to the Managing Member, to inspect the Facilities and all relevant books and records relating thereto and make copies thereof. Any such inspection will be conducted during normal business hours and so as not to unreasonably interfere with the business of the Managing Member.

8.4. Reports. The Managing Member shall, at the Company’s expense, deliver, or caused to be delivered to each Member, the following reports, information and financial statements at the times indicated below:

(a) Annually, within [***] days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately- preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Quarterly, within [***] days after the end of each calendar quarter, unaudited quarterly financial statements of the Company and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(c) Quarterly, within [***] days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from the Facility, (2) the revenues and expenses of the Facility for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

(d) Annually, within [***] days prior to the start of each calendar year, the annual capital and operating budgets for the Company and the Facility Company;

(e) Promptly upon becoming aware of any such event or circumstance, notice of (i) any material litigation pending or, to the knowledge of the Managing Member, threatened against the Facility Company or the Company and (ii) any material event of default under the Facility Documents;

(f) Within [***] days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

(g) Promptly following any request therefor, such other reports and information in the possession of the Managing Member as reasonably requested by the Members and such other reports reasonably requested by and paid for by the requesting Member to the extent external costs are incurred with respect to the preparation of such reports.

8.5. Permitted Investments. All cash of the Company may only be invested and reinvested in one of the following investment alternatives (“Permitted Investments”) (but not directly or indirectly in any “public utility” or “holding company” as defined in the FPA unless any applicable FERC approval has been obtained):

(a) Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America;

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(b) Obligations, debentures, notes or other evidence of Indebtedness issued or guaranteed by any of the following: Export-Import Bank of the United States, Federal Housing Administration or other agency or instrumentality of the United States;

(i) insured by the Federal Deposit Insurance Corporation, or

(ii) held in banks and savings and loan associations, having general obligations rated at least “AA” or equivalent by S&P or Xxxxx’x, or if not so rated, secured at all times, in the manner and to the extent provided by law, by collateral security described in clauses (a) or (b) of this definition, of a market value of no less than the amount of moneys so invested;

(d) Obligations of any state of the United States or any agency or instrumentality of any of the foregoing which are rated at least “AA” by S&P or at least “Aa” by Xxxxx’x;

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Xxxxx’x, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than [***] days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or Member.

(f) Any other investments agreed to by the Members and the Managing

8.6. Tax Elections. The Managing Member shall make the following federal income tax elections on the appropriate Company tax returns:

(a) To the extent permitted under Code Section 706, to elect the calendar year as the Company’s Taxable Year;

(b) To elect the accrual method of accounting;

(c) To elect to amortize any organizational and start-up expenses of the Company ratably over a period of 180 months as permitted by Code Sections 709(b);

(d) To make any election the Managing Member reasonably determines is necessary to claim the ITC with respect to a Facility;

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(e) If a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties; and

(f) To elect under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

The Managing Member shall make no other tax elections for the Company, except as otherwise provided herein, without the written Consent of the Members, such consent not to be unreasonably withheld; provided, however, that the Managing Member may, subject to the limitation that the Tax Return shall be filed no later than August 1st of the year following the Company’s Taxable Year, elect to extend the time for filing any Company tax return as provided for under the Code and applicable State statutes. Neither the Company nor any Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of any state Applicable Law. No Member, Managing Member, officer or agent of the Company is authorized to, or may, file IRS Form 8832 (or such alternative or successor form) to elect to have the Company or the Facility Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3.

8.7. Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model (a “Consistent Return”), except as otherwise required by Applicable Law. The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the [***] days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member, but in any event, shall furnish such Tax Return at least [***] days prior to the due date for filing, and, with respect to any Tax Return for any tax year relating to any portion of the Recapture Period, shall incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing, and, with respect to any other Tax Return, shall use good faith efforts to incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss, deduction or credit) prior to the date [***] days after the end of the Taxable Year and shall furnish to the Members copies of each Tax Return as filed. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return

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that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Members. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed; provided, that, if the Tax Return is required under Applicable Law to be filed prior to the date on which such independent expert makes its determination, the Tax Return shall be filed consistent with the positions set forth by the Tax Matters Member and will be amended by the Tax Matters Member to reflect the determination of such independent expert, as applicable. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert.

(b) The Tax Matters Member, in consultation with the other Members, shall direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, provided that the Tax Matters Member shall consider in good faith any reasonable requests made by the Class A Members in respect of the strategy to be taken in connection with any such defense; and further provided, that, if the Tax Matters Member and the Class A Members are unable to agree on any strategy to be taken with respect to the defense of any such claims, such strategy shall be determined by tax counsel selected by the Tax Matters Member and approved by the Class A Members to make such determination. The Tax Matters Member shall select nationally recognized tax counsel to represent the Company in any such defense. The Tax Matters Member shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Member in consultation with the other Members. The Tax Matters Member shall promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise each Member of the substance of any conversations with the IRS in connection therewith and shall keep the Members advised of all developments with respect to any proposed adjustments that come to its attention. In addition, the Tax Matters Member shall (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing that are approved or recommended by the Class A Members and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Member will provide each Member with written notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

(c) Without the consent of the Class A Members, the Tax Matters Member shall not (A) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or Section 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (B) enter into a settlement agreement with the IRS which purports to bind the Members; (C) intervene in any action as contemplated by Section 6226(b) of the Code; (D) file any request contemplated in Section 6227(b) of the Code; or (E) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Code.

(d) The provisions of this Article VIII will survive the termination of the Company or the termination of any Member’s interest in the Company and will remain binding on the Member for the period of time necessary to resolve with the IRS or other federal tax agency any and all federal income tax matters relating to the Company that are subject to Code Sections 6221 through 6233.

(e) The Tax Matters Member and the Members will treat the Company as the owner of the Facilities for federal income and other applicable tax purposes in all tax filings.

(f) Each Member shall provide the other Members with such assistance as may reasonably be requested by such other Members in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to the liability for any taxes with respect to the operations of the Company and the Project Company or the ITC or depreciation deductions with respect to any Facility.

8.8. Financial Accounting. Each Member may report the transactions contemplated hereby for financial accounting purposes in such manner as the Member and its accountants may determine appropriate.

8.9. Legend. Until (a) the securities representing ownership of membership interests in the Company are effectively registered under the Securities Act of 1993, as amended, or (b) the holder of such securities delivers to the Company a written opinion of counsel of such holder to the effect that such legend is no longer necessary under the Securities Act of 1933, as amended, the Company will cause each certificate representing its securities to be stamped or otherwise imprinted with the following legend:

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2014 ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

8.10. Representations, Warranties and Covenants of the Class B Member. The Class B Member represents and warrants on the Effective Date and covenants as follows:

(a) The Class B Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The Class B Member has the full limited liability company right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of the Class B Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by Section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class B Member is a disregarded entity, then each beneficial owner of such Class B Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class B Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax- exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(h) The Class B Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

(i) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, the Class B Member will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(j) Except to the extent the Company is or becomes a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code on account of a relationship with any Class A Member or any Affiliate thereof, the Company shall not become a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

8.11. Representations, Warranties and Covenants of the Class A Member. The Class A Member represents and warrants on the Effective Date and covenants to the Class B Member as follows:

(a) It is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) It has the full right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of such Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(e) The Class A Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax- exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(f) The Class A Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class A Member is a disregarded entity, then each beneficial owner of such Class A Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class A Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

(h) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, it will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(i) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

8.12. Survival. The representations, warranties and covenants herein shall be continuing agreements of the Members that made them and shall continue until the termination of this Agreement.

8.13. No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION

9.1. Transfer and Encumbrances of Membership Interests.

(a) General Restriction. A Member may not Transfer or create or allow an Encumbrance (other than a Permitted Encumbrance of the type described in clause (n) of such term’s definition) on all or any portion of its Membership Interest, except in strict accordance with this Section 9.1. References in this Agreement to Transfers or Encumbrances of a “Membership Interest” shall also refer to Transfers or Encumbrances of a portion of a Membership Interest. Any attempted Transfer or Encumbrance of any Membership Interest, other than in strict accordance with this Section 9.1, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Section 9.1 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the provisions of this Section 9.1 may be enforced by specific performance.

(b) Transfers of Membership Interests.

(i) General Provision. A Member may not Transfer all or any portion of its Membership Interest except by complying with the following requirements:

(A) No Transfer by the Class B Member may be made without the prior written consent of the Class A Member (such consent not to be unreasonably withheld). Any Transfer by the Class B Member shall be subject to the right of first Bid provisions of Section 9.1(d), and may not be made to any Disqualified Transferee.

(B) No Transfer by the Class A Member may be made without the prior written consent of the Class B Member (such consent not to be unreasonably withheld), provided that the Class A Member may make such a Transfer to any Affiliate of the Class A Member without the consent of the Class B Member.

(C) Any such Transfer must comply with the requirements of Section 9.1(b)(iii) and, if the Transferee is to be admitted as a Member, Section 9.1(b)(ii).

(ii) Admission of Transferee as a Member. A Transferee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Transferee, only if (A) the Transferring Member making the Transfer has granted the Transferee the Transferring Member’s entire Membership Interest, or, in the case of Transfer of a part of such Member’s Membership Interest, the express right to be so admitted; and (B) such Transfer is effected in strict compliance with this Section 9.1.

(iii) Requirements Applicable to All Transfer and Admissions. In addition to the requirements set forth in Sections 9.1(b)(i) and 9.1(b)(ii), any Transfer of a Membership Interest and any admission of a Transferee as a Member shall also be subject to the following requirements, and such Transfer (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A) Transfer Documents. The following documents must be delivered to the Managing Member and each other Member:

(1) Notice. Written notice not less than [***] Business Days prior to the effective date of such Transfer.

(2) Transfer Instrument. An instrument implementing the Transfer.

(3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3)

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the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

(B) Applicable Laws; Securities Laws. Such Transfer does not violate any provision of Applicable Law, including, without limitation, applicable securities laws.

(1) Entity Classification. Such Transfer will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code.

(2) Tax-Exempt Use Property. Such Transfer will not cause the Assets of the Company to become (in whole or in part) “tax-exempt use property” within the meaning of Section 168(h) of the Code.

(3) Tax Disqualified Person. Such Transfer will not cause the recapture of any ITC with respect to any Member other than the transferring Member.

(4) Related Person. Such Transfer will not result in either (1) a Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b), or (2) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

(5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than [***] Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that

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such Transfer will not cause any of (1) the recapture of any ITC claimed by the Company with respect to a Facility for any Member other than the transferring Member, (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

Solely for purposes of this Section 9.1(b)(iii)(C), any direct or indirect Transfer of an interest in a Member which would cause any event described in Section 9.1(b)(iii)(C) to occur with respect to a Membership Interest of that Member shall be treated as a Transfer by that Member of its Membership Interest.

(D) Payment of Expenses. The Transferring Member and its Transferee shall pay, or reimburse the Company and each other Member for, all reasonable costs and expenses incurred by the Company and such other Members in connection with the Transfer and admission, on or before the tenth day after the receipt by that Person of the Company’s or such other Member’s invoice for the amount due.

(E) No Release. No Transfer of a Membership Interest shall effect a release of the Transferring Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Transfer.

(F) Consents and Permits. All permits, consents, approvals and licenses with respect to such Transfer shall have been obtained (including any approval by FERC that the Company, the Facility Company or any party to a Transfer requires).

(G) Investment Company Act. Such Transfer does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(iv) Change of Member Control. A Change of Member Control of the Class B Member must also comply with the requirements of this Section 9.1 (other than Section 9.1(b)(iii)(A)(2), Section 9.1(b)(iii)(A)(3)), for a Transfer of the Class B Member’s interest at such time.

(c) Encumbrances of Membership Interest. A Member may encumber its Membership Interest if the instrument creating such Encumbrance provides that any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) must comply with the requirements of Sections 9.1(b)(i) and 9.1(b)(iii). Any such Encumbrance, and any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) that complies with such requirements shall be a Permitted Encumbrance and a permitted transfer pursuant to this Section 9.1.

(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of [***] days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within [***] days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within [***] Business Days following receipt of the acceptance of the Bid (or, in any event if later, the [***] Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of [***] days thereafter (or, in any event, if later, the [***] Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

9.2. Buyout Option.

(a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”):

(i) a Member becomes Bankrupt;

(ii) a Member dissolves and commences liquidation or winding up;

(iii) there occurs an event that makes it unlawful for the Member to continue to be a Member.

(b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members [***] days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.

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(d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure.

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the [***] day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the [***] Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

(f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”):

(i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing.

(ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information).

(iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member.

(iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing.

(v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1. Dissolution.

(a) The Company will dissolve and its business and affairs will be wound up on the first to occur of the following (the “Liquidating Events”):

(i) The unanimous written consent of the Members;

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(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within [***] days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve; or Assets.

(iii) The Transfer by the Company of all or substantially all of its

(b) Each Member agrees that, to the fullest extent permitted by Applicable Law, it will not dissolve itself or the Company or withdraw from the Company except as set forth in Section 10.1(a).

10.2. Liquidation and Termination.

(a) On dissolution of the Company, the Managing Member shall act as liquidator or may appoint one or more other Persons as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided in this Agreement. The costs of liquidation will be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company with all of the power and authority of the Managing Member. The steps to be accomplished by the liquidator are as follows:

(i) As promptly as reasonably practicable after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by the Certified Public Accountants of the Company’s and the Facility Company’s Assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

(ii) The liquidator shall pay from Company funds all of the debts and liabilities of the Company and the Facility Company or otherwise make adequate provision for them (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine);

(iii) with respect to the remaining Assets of the Company:

(A) the liquidator shall use all commercially reasonable efforts to obtain the best possible price and may sell any or all of the Company’s, and the Facility Company’s Assets (subject to any and all restrictions to which the Company or the Facility Company is subject, including restrictions under Applicable Laws or any Permitted Encumbrances), including to the Members at such price, but in no event lower than the Fair Market Value thereof; and

(B) with respect to all of the Company’s or the Facility Company’s Assets that have not been sold, the Values of such Assets shall be determined pursuant to subparagraph (ii) of the definition of Value;

[***] Confidential Treatment Requested

(iv) items of income, gain, loss and deduction (including any such items attributable to the disposition of Assets pursuant to Section 10.2(a)(iii)) for the Taxable Year during which the distribution of liquidation proceeds occurs shall be allocated as follows:

(A) first, after giving effect to the special allocations in Section 4.3, items of gross income, gain and credit arising in connection with the liquidation shall first be allocated to each Member having a negative balance in its Capital Account, in the proportion that such negative balance bears to the total negative balances in the Capital Accounts of all Members, until each Member has been allocated items of gross income and gain equal to any such negative balance in its Capital Account and such deficit balance has thereby been eliminated;

(B) then, any remaining items of income or gain shall be allocated among the Members until the aggregate positive Capital Account balances of the Class B Members and the aggregate positive Capital Account balances of the Class A Members are in proportion to the percentages set forth in Section 4.2(a); and;

(C) finally, any remaining items of income or gain shall be allocated among the Members, 90% to the Class A Members pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(v) After giving effect to all allocations (including those under Section 4.2 and Sections 10.2(a)(iv)), all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1 and Section 3.2) for all periods, all remaining cash and property (including any Available Cash Flow and liquidation proceeds) shall be distributed to the Members in accordance with the positive balances in their Capital Accounts; and

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company taxable year in which a Liquidating Event occurs (or if later, within [***] days after the date of such Liquidating Event).

(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on account of its Membership Interest and all the Company’s property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act.

10.3. Deficit Capital Accounts. Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account. Notwithstanding the foregoing, each Member shall have the right by written notice signed by such Member to the Company (with a copy to all other Members) (the “DRO Notice”), at any time and in its sole discretion, to elect to undertake or increase the amount of, a limited deficit restoration obligation,

[***] Confidential Treatment Requested

the amount of which shall be specified in such DRO Notice (which amount is the “DRO Limit”). Nothing contained in this Agreement shall obligate any Member to issue a DRO Notice. A DRO Notice given by a Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party, and the corresponding limited deficit restoration obligation for such Member shall be considered part of a Consistent Return for purposes this Agreement. Further, upon the earlier of (a) the point in time at which the absolute value of the deficit balance in a Member’s Capital Account equals or exceeds its DRO Limit and (b) the end of the first Taxable Year during which the absolute value of the deficit balance in a Member’s Capital Account as of the end of such Taxable Year is less than the absolute value of the deficit balance in such Member’s Capital Account as of the end of the immediately preceding Taxable Year, such Member’s DRO Limit shall be automatically decreased (but not increased) at the end of such Taxable Year and each subsequent Taxable Year to an amount equal to the excess, if any, of (1) the absolute value of the deficit balance (if any) in such Member’s Capital Account at the end of such Taxable Year (prior to taking into account such reduction) over (2) the amount that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Treasury Regulation Sections 1.704-2(g)(1) and 1.704- 2(i)(5) as of the time of such reduction. In the event there is a “liquidation” of a Member’s interest in the Facility Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Member’s share of any Facility Company Minimum Gain and Member Nonrecourse Debt Minimum Gain and the allocations pursuant to Section 10.2), all distributions and all Capital Contributions for all periods, if that Member has a deficit balance in its Capital Account, calculated in accordance with this Agreement and without regard to such Members’ obligation pursuant to this Section 10.3 (except to the extent disregarding such obligation in calculating such amount is inconsistent with law, in which case such Member’s obligation pursuant to this Section 10.3 shall be taken into account in such calculation), then such Member shall be obligated to pay to the Company cash in an amount equal to such deficit balance by the end of the Taxable Year of the Company during which the liquidation of the Facility Company occurs, or if later, within [***] days after the date of such liquidation; provided, however, that the restoration obligation of a Member shall not exceed such Member’s then DRO Limit.

10.4. Termination. On completion of the satisfaction of liabilities and distribution of Assets as provided in this Agreement, the Managing Member (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Delaware Certificate and any filings made as provided in Section 2.1 and shall take such other actions as may be necessary to terminate the Company.

ARTICLE XI

INDEMNIFICATION

11.1. Indemnification of Class A Investor Group by the Class B Member. Without in any way limiting any rights the Class A Equity Investor has under the Bloom Guarantee, and subject to the terms and conditions of this Article XI, the Class B Member hereby indemnifies, defends, reimburses and holds harmless the Class A Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class A Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class A

[***] Confidential Treatment Requested

Investor Group, directly or indirectly, by reason of or resulting from any breach by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company or the Administrator or their Affiliates of their respective representations and warranties or covenants contained in this Agreement or any other Transaction Document (collectively, “Class A Investor Claims”). To the extent that any such Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of the Class B Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.2. Indemnification of Class B Investor Group by the Class A Member. Subject to the terms and conditions of this Article XI, the Class A Member hereby indemnifies, defends, reimburses and holds harmless the Class B Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class B Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class B Investor Group, directly or indirectly, by reason of or resulting from (a) any breach by the Class A Investor Group of their respective representations and warranties or covenants contained in this Agreement, any other relevant Transaction Document (collectively, “Class B Investor Claims”). To the extent that any such Damages relating to a Class B Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to a Class A Member under this Agreement shall be used to satisfy the obligations of such Class A Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.3. Brokers. Each Member agrees to indemnify and hold harmless the other Member from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, the Company or the Administrator or their Affiliates with any broker or finder in connection with this Agreement or the transaction contemplated hereby.

11.4. Limitation on Liability. The indemnification obligations of the parties hereto pursuant to this Article XI shall be subject to the following limitations:

(a) The amount of Damages required to be paid by any party to indemnify any other party pursuant to this Article XI as a result of any Class A Investor Claim or Class B Investor Claim shall be reduced to the extent of any amounts actually received by such other party after the Effective Date pursuant to (i) the Equity Capital Contribution Agreement, (ii) the Bloom Guarantee, and (iii) the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company, the Class A Equity Investor or the Class B Equity Investor or any Affiliate thereof covering such claim. In the event an indemnified party or any of its Affiliates receives proceeds from indemnification under the Equity Capital Contribution Agreement, the Bloom Guarantee, or any insurance policy with respect to a Class A Investor Claim or Class B Investor Claim for which it previously received indemnification payments, such indemnified party shall promptly pay to the indemnifying party such proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable Class A Investor Claim or Class B Investor Claim.

(b) Damages paid pursuant to this Article XI shall, to the maximum extent permitted under Applicable Law, be treated as an adjustment to the capital contributions of the Members (or otherwise as a non-taxable reimbursement, contribution, or return of capital, as the case may be). To the extent any Damages paid pursuant to this Article XI are includible in the recipient’s gross income, as determined by agreement of the parties, or if there is no agreement, by an opinion of a nationally-recognized tax counsel selected jointly by the parties at a “should” level of comfort that such amount is includable as income of the recipient, solely to the extent the tax liability with respect to the inclusion of such payment of Damages in the income of the recipient is greater than the tax liability of the recipient would have been if there had been no breach giving rise to the payment of Damages, such payment will be grossed-up and paid on an after-tax basis (assuming the then-highest highest marginal federal income tax rate then applicable to corporations). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to an item that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of the indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming then-highest marginal federal income tax rate then applicable to corporations).

(c) The indemnification obligations of the parties pursuant to this Agreement shall be limited to actual Damages and shall not include special, incidental, consequential, indirect, punitive, or exemplary Damages (including lost profits and damages for a lost opportunity); provided, that any incidental, consequential, indirect, punitive, or exemplary Damages recovered by a third party (including Governmental Entities) against a Person entitled to indemnity pursuant to this Article XI shall be included in the Damages recoverable under such indemnity; and provided, further, that the loss of the ITC shall not be considered as special, incidental, consequential, indirect, punitive or exemplary damages and shall be included in the Damages recoverable under this indemnity.

(d) No member of the Class A Investor Group or the Class B Investor Group may receive compensation for Damages suffered by such Person to the extent that such Damages are attributable to (a) the gross negligence or willful misconduct of such Person or (b) the breach of any representation or warranty by such Person in this Agreement or any other Investment Document to the extent such representation or warranty was false when made.

11.5. Procedure for Indemnification. After receipt by an indemnified party under Section 11.1, Section 11.2, Section 11.3 or Section 11.4 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement thereof. The failure to promptly notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party with respect to such action; provided that, to the extent that any such failure to provide prompt notice is responsible for an increase in the indemnity obligations of the indemnifying party, the indemnifying party shall not be responsible for any such increase. In case any such action shall be brought against an

indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and (i) there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party or (ii) such action could reasonably be expected to result in the imposition of criminal liability, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party and it is practical for all such parties to be represented by common counsel, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party’s written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld) unless the indemnifying party has failed to defend such indemnified party against such action. If this Section 11.5 conflicts with the contest provisions in Section 8.7 with respect to any contest or claim relating to taxes, Section 8.7 shall govern.

11.6. Exclusivity. Subject to Section 5.4, the parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise) pursuant to this Agreement, any other Investment Document, the ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other parties hereto in respect of said breach, default, or nonperformance shall be Damages, but only to the extent properly claimable hereunder and as limited pursuant to this Article XI or otherwise hereunder.

11.7. No Right of Contribution. After the Effective Date, the Company shall have no liability to indemnify the Class B Equity Investor on account of the breach of any representation or warranty or the nonfulfillment of any covenant or agreement of the Company; and the Class B Equity Investor shall not have any right of contribution against the Company.

11.8. Entire Agreement. Article XI of this Agreement constitutes the entire agreement and understanding of the parties with respect to indemnification hereunder.

ARTICLE XII

GENERAL PROVISIONS

12.1. Offset. Whenever the Company (or another Person on behalf of the Company) is to pay or distribute any sum to any Member, any amounts then owed by such Member or its Affiliate to the Company (as determined in writing to the satisfaction of the other Members) shall be deducted from such sum before payment.

12.2. Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Member may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 12.2 are:

If to the Class B Member, to:

Clean Technologies 2014, LLC

c/o Bloom Energy Corporation

0000 Xxxxxxx Xxxxx

Xxxxxxxxx, XX 00000-0000

Attention: Xxxx Xxxxxxxxxxxxxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Email: xxxx.xxxxxxxxxxxxxx@xxxxxxxxxxx.xxx

If to the Investor Member, to:

Exelon Generation Company, LLC

00 X. Xxxxxxxx Xx., 00xx Xxxxx

Xxxxxxx, XX 00000

Attention: Xxxx X. Xxxxxxx

with a copy to:

Exelon Business Services Company, LLC

00 Xxxxx Xxxxxxxx Xx., 00xx Xxxxx

Xxxxxxx, XX 00000

Attn: Xxxxxx X. Xxxxxx

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above. Any notice to be provided to the Company shall be provided to the Managing Member at the address set forth in this Section.

12.3. Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

12.4. Governing Law and Severability. This Agreement shall be deemed made and prepared and shall be construed and interpreted in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of laws thereof which may require the application of the law of another jurisdiction. If any provision of this Agreement shall be contrary to any other Applicable Law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with Applicable Law and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement.

12.5. Entire Agreement. This Agreement, including any Schedules and Exhibits, together with the other Investment Documents, constitutes the entire agreement among the Members regarding the terms and operations of the Company, except as amended in writing pursuant to the requirements of this Agreement, and supersedes all prior and contemporaneous agreements, statements, understandings and representations of the parties.

12.6. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement, or any Investment Document is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement, or any Investment Document. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to its obligations under this Agreement, or any Investment Document, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.

12.7. Amendment or Modification. Except as otherwise provided herein, this Agreement may be amended or modified from time to time only by a written instrument executed by all Members. Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions. Any such consent shall be obtained in writing from the Facility Lenders and any other required parties to the Financing Documents as and when required pursuant to the terms of the Financing Documents.

12.8. Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective legal representatives, permitted successors and permitted assigns.

12.9. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

12.10. Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York and of any federal court located in the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 11.3 hereof.

12.11. Limitation on Liability. NO CLAIMS SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFORE IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER INVESTMENT DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR, PROVIDED, HOWEVER, THAT AT ANY TIME (a) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS B MEMBER OR ITS AFFILIATE, OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES AND (b) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS A MEMBER OR ITS AFFILIATE BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES.

THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.


EXELON GENERATION COMPANY, LLC

By:
Name:
Title:

CLEAN TECHNOLOGIES 2014, LLC

By:
Name:
Title:

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

Class A Equity
Investor

Amount

Capital Account
Balance

Units

Percentage of
Class A Interest
Owned

Effective Date

Exelon
Generation
Company,
LLC

[

]

[

]

[ ] Class A
Units

100

Class B Equity
Investor

Amount

Capital Account
Balance

Units

Percentage of
Class B Interest
Owned

Effective Date

Clean
Technologies
2014, LLC

[

]

[

]

100 Class B
Units

100

EXHIBIT B

FORM OF MEMBERSHIP CERTIFICATE

CERTIFICATE FOR MEMBERSHIP INTEREST

2014 ESA HOLDCO, LLC

Certificate No. [A][B] – [ ]

The undersigned, as the Managing Member of 2014 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that [ a, ], is the holder of a Class [ ] Interest in the Company to the extent and as described in Exhibit A to the Amended and Restated Operating Agreement of the Company, effective as of [ ], 2014, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

This Certificate is not negotiable or transferable except by operation of law, or as otherwise provided in the Agreement, and any such transfer will be valid only upon delivery of this Certificate, together with an assignment in a form sufficient to convey an interest in a limited liability company pursuant to the Delaware Limited Liability Company Act, as it may be amended and in effect from time to time, or any successor statute thereto, duly executed, to the Transferee Member of the Company.

Dated: [ ]


CLEAN TECHNOLOGIES 2014, LLC

By:
Name:
Title:

Exhibit B - Page 1

ANNEX 7

Form of Independent Engineer Use of Work Product Agreement

See Attached.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell Project

[***]

[***] Confidential Treatment Requested

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell

[***]


ACKNOWLEDGED & AGREED
EXELON CORPORATION

Signature
Name
Title
Date

[***] Confidential Treatment Requested

[***]

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell


LEIDOS ENGINEERING, LLC

Signature
Name
Title
Date

ANNEX 8

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

A&R PUMA

ASA

3.	Facility Company LLC Agreement

4.	P. O. Number 001 by and between Seller and Project Company, dated as of June 24, 2014

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 9

Tax Matters

None.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 10

Forms of Financing Documents

See Execution Versions.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Document Metadata

Table of Contents

EQUITY CAPITAL CONTRIBUTION AGREEMENT by and among CLEAN TECHNOLOGIES 2014, LLC and EXELON GENERATION COMPANY, LLC JULY 18, 2014

Document Metadata