Certain confidential information contained in this document, marked by brackets has been omitted and filed separately with Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. EXECUTION VERSION THIRD...
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[***] Certain confidential information contained in this document, marked by brackets has been omitted and filed separately with Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. EXECUTION VERSION THIRD AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT between BLOOM ENERGY CORPORATION as Seller and 2016 ESA PROJECT COMPANY, LLC as Buyer dated as of October 24, 2016 amended and restated as of June 26, 2017 second amended and restated as of March 16, 2018 third amended and restated as of September 26, 2018 SA#6681533_17.docx
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TABLE OF CONTENTS (continued) Page ANNEXES Annex A Minimum Power Product Example Calculation Annex B Insurance Annex C Capacity Warranty Claim Example Calculation and Amounts Payable Annex D List of PPAs EXHIBITS Exhibit A Specifications for Bloom Systems and Battery Solution Exhibit B Form of Xxxx of Sale Exhibit C Seller Deliverables Exhibit D Form of Payment Notice Exhibit E Form of Purchase Order Exhibit F Form of Seller’s Deposit Milestone Certificate Exhibit G Form of Tranche Notice Exhibit H Form of Seller’s Certificate of Installation Exhibit I Assignment Agreements Exhibit J Seller Corporate Safety Plan Exhibit K Seller Subcontractor Quality Plan Exhibit L Projected Tolling Rates Exhibit M Parties’ Managers and Service Fees SCHEDULES Schedule 3.3 Design and Installations Procedures Schedule 3.4 Commissioning Procedures Schedule 4.2 Operations and Maintenance Procedures Schedule 4.6 Approved Major Service Providers -iv-
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THIRD AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT This THIRD AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2016 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”. RECITALS WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems; WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity generated by the Bloom Systems; WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems to be installed in certain Facilities in connection with PPAs entered into by Buyer when and as the conditions to such installation are met as provided in this Agreement; WHEREAS, to induce Buyer to purchase the Bloom Systems, Seller also has agreed to provide certain operations and maintenance services to or on behalf of Buyer subject to the terms and conditions of this Agreement; WHEREAS, Buyer and Seller previously entered into that certain Purchase, Use and Maintenance Agreement, dated as of October 24, 2016, as amended by (a) that certain Amendment No. 1 to Purchase, Use and Maintenance Agreement, dated as of February 15, 2017, and (b) that certain Amendment No. 2 to Purchase, Use and Maintenance Agreement, dated as of April 28, 2017 (collectively, the “Original PUMA”); WHEREAS, Buyer and Seller amended and restated the Original PUMA in its entirety pursuant to that certain First Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 26, 2017, as amended by that certain Amendment No. 1 to First Amended and Restated Purchase, Use and Maintenance Agreement, dated as of September 11, 2017 (collectively, the “First A&R PUMA”); WHEREAS, Buyer and Seller amended and restated the First A&R PUMA in its entirety pursuant to that certain Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of March 16, 2018, as amended by (a) that certain Amendment No. 1 to Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of Xxxxx 00, 0000, (x) that certain Amendment No. 2 to Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 22, 2018, and (c) that certain Amendment No. 3 to Second Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 30, 2018 (collectively, the “Second A&R PUMA”); and
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“Approved LDC” means, with respect to each Site, the local natural gas distribution company serving the PPA Customer at such Site. For the avoidance of doubt, natural gas supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer hereunder. “Assignment Agreements” means the assignment and assumption agreements listed on Exhibit I hereto, as the same may be updated from time to time by the mutual agreement of the Parties. “AT&T PPA” has the meaning set forth in Annex D. “Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its Assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided, that, if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days. “Bankruptcy Laws” is defined in Section 11.3. “Base Case Model” means the economic model titled “PPA VI Financial Model Q3 18 Purchase Price Adjustment 9-19-18 FINAL (TO SEND).xlsx” exchanged between the Parties on or about September 19, 2018. “Battery Solution” means an integrated battery solution, manufactured and supplied by the Battery Solution Manufacturer as described in the specifications set forth on Exhibit A, to be included in certain of the Facilities. “Battery Solution Manufacturer” means PowerSecure, Inc., or such replacement manufacturer as the Parties may mutually agree in writing. “Battery Solution Supply Agreement” means that certain Supply Agreement between PowerSecure, Inc. and Seller, dated as of April 28, 2017. “Xxxx of Sale” means a xxxx of sale in substantially the form attached hereto as Exhibit B. “Bloom Component Defect” means any defect in parts and components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture any Battery Solution that (i) was not caused by the Battery Solution Manufacturer’s misuse, including but not limited to, improper testing, assembly, and mishandling of such parts and components and (ii) results in a failure of such parts and components to perform in 3
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accordance with any warranty(ies) provided by Seller to the Battery Solution Manufacturer. “Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by natural gas designed, constructed and installed by Seller, which will be installed in the Facilities, and “Bloom System” means each such system. “BOF” means, for each Site, the balance of facility items included in each Facility including, as applicable, Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems and any other facilities and equipment ancillary to the Bloom Systems and installed in connection with the Facility at each Site and all other things ancillary to the Facility and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site or which are otherwise required by the applicable PPA or Site License for such Site. “BOF Work” is defined in Section 3.3(a). “Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close. “Buyer” is defined in the preamble. “Buyer Default” is defined in Section 12.2. “Buyer Indemnitee” is defined in Section 13.3(a). “Buyer Manager” is defined in Section 4.8(b). “Calculation Date” is defined in Section 4.12(a). “Calculation Period” is defined in Section 4.12(a). “Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31. “Capacity Warranty” means the Performance Warranty or the Performance Guaranty, as applicable. “Claiming Party” is defined in Section 12.6. “Code” means the Internal Revenue Code of 1986, as amended. “Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities: (a) all Bloom Systems and related materials comprising such Facility required to complete all BOF Work have been Delivered; 4
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(b) such Facility has been installed at the location specified in the applicable Site License and Placed in Service; (c) (i) such Facility (A) has been attached to the load at the applicable Site, (B) is producing power at [***] of the aggregate System Capacity of all Bloom Systems included in such Facility, and (C) is operating at or above the Minimum Efficiency Level, and (ii) Seller has provided Buyer with evidence reasonably satisfactory to Buyer of each of the foregoing; (d) Seller has (i) performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing), and (ii) obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility; (e) Seller shall have delivered Seller’s Certificate of Installation to Buyer; and (f) Seller shall have delivered to Buyer each of the Seller Deliverables indicated on Exhibit C as items for delivery prior to or at Commencement of Operations. “Commencement of Operations Date Deadline” means December 31, 2019. “Components” means any tangible materials and spare or replacement parts reasonably required for the construction, installation, commissioning, operation, maintenance and repair of a Facility. “Confidential Information” is defined in Section 10.1. “CoreSite PPA” has the meaning set forth in Annex D. “DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS® 2010”) as prepared by the International Chamber of Commerce. “Delivery” means for each Bloom System, the physical delivery of such Bloom System to its Site. Following such Delivery, the Bloom System shall have been “Delivered.” “Delivery Date” means for each Bloom System, the date of Delivery. “Deposit Milestone Requirements” means, for a Tranche, that: (a) Buyer has received approval of Site plans and single-line drawings from one or more PPA Customers for Facilities with aggregate System Capacity equal to or greater than the aggregate System Capacity of Facilities included in such Tranche (and all other Tranches for which Seller previously delivered a Seller’s Deposit Milestone Certificate to Buyer); 5 [***] Confidential Treatment Requested
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(b) Seller has received all materials required for the commencement of fabrication of Bloom Systems with aggregate System Capacity equal to or greater than the aggregate System Capacity of Facilities included in such Tranche, and all materials required as of such time to allow for completion of such fabrication in order to achieve Commencement of Operations of such Facilities (and all Facilities included in all other Tranches for which Seller previously delivered a Seller’s Deposit Milestone Certificate to Buyer) within ninety (90) days; and (c) Seller shall have delivered Seller’s Deposit Milestone Certificate to Buyer, certifying the satisfaction of requirements (a) and (b) hereof. “Documentation” means Bloom System documentation for a Facility, including testing, engineering, specifications, and operations and maintenance manuals, Training Materials, drawings, reports, standards, schematics, directions, samples and patterns, including any such Documentation required to be delivered prior to Commencement of Operations under Section 3.4(a)(iv). “Efficiency” means the quotient of E/F, where (i) E = the electricity produced by the applicable Facility, measured in BTUs (British Thermal Units) at an assumed conversion rate of 3,412 BTUs per kWh, and (ii) F = the fuel consumed by such Facility, measured in BTUs on a lower heating value basis as determined by the mass flow controller included in the applicable Facility. “Efficiency Warranty” is defined in Section 5.3. “Efficiency Warranty Period” means each calendar month following the Commencement of Operations of a Facility (or, in the case of the calendar month in which Commencement of Operations occurred, the portion of such calendar month commencing on the date such Facility achieved Commencement of Operations), but shall exclude any period when such Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Facility (e.g., due to a grid event), or (iv) was impacted by a failure of the Battery Solution to perform in accordance with any warranty(ies) provided by the Battery Solution Manufacturer (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect), except, in each case, to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives. “Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement. 6
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“Electronic Data Room” means the electronic dataroom known as “Project Bloom PPA” established by the Seller and made available to the Investor. “Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh. “Environmental Law” means any Legal Requirement which pertains to health, safety, any Hazardous Material, or the environment (including but not limited to ground or air or water or noise pollution or contamination, and underground or above ground tanks) and shall include without limitation, the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; and any other state or federal environmental statutes, and all rules, regulations, orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future. “Environmental Requirements” means any Environmental Law, agreement or restriction (including but not limited to any condition or requirement imposed by any insurance or surety company), as the same now exists or may be changed or amended or come into effect in the future, which pertains to health, safety, any Hazardous Material, or the environment. “EPC Services” is defined in Section 2.1. “Equinix” means the PPA Customer pursuant to the Equinix PPA. “Equinix Indemnity Agreement” means that certain letter agreement between Buyer and Equinix regarding the Equinix Landlord Consents, dated as of June 27, 2018. “Equinix Landlord Consent(s)” means each of (i) that certain Letter Agreement between Equinix and Digital 1350 Xxxxx, LLC regarding consent to alterations to allow installation of the Facility to be installed at 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, XX, dated as of July 25, 2018; and (ii) that certain Letter Agreement between Equinix and Digital 444 Toyama, LLC regarding consent to alterations to allow installation of the Facility to be installed at 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX, dated as of July 25, 2018. “Equinix PPA” has the meaning set forth in Annex D, which, for clarity, includes the Equinix Indemnity Agreement and the Equinix Landlord Consents. “Extended Warranty Period” means, with respect to each Facility, the period commencing on the first (1st) anniversary of the date such Facility achieves Commencement of Operations and ending on the twentieth (20th) anniversary of the date of Commencement of Operations of such Facility unless (a)(i) the applicable PPA has been renewed or extended beyond such twentieth (20th) anniversary and (ii) Buyer and Seller have agreed 7
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on an appropriate amendment to this Agreement to provide for an extension of the term of the Extended Warranty Period for the applicable Facility(ies), in which case the Extended Warranty Period shall end on the date on which such PPA expires or terminates. “Extension Agreement” is defined in Section 4.1(c). “Facility” means, collectively, the Bloom Systems and the BOF at a particular Site. For the avoidance of doubt, “Facility” includes, where applicable, any AOM(s), Battery Solution, Low Pressure Gas Booster(s) and/or UPM(s) installed in connection with the Bloom Systems at a particular Site. Where a PPA provides for multiple “Phases” at a Site (i.e., discrete installations of Bloom Systems to be installed behind a single Transmitting Utility meter), each Phase shall be understood to be a separate “Facility” for purposes of this Agreement. “Facility Meter” means (a) with respect to a Site that has a single Phase, the revenue quality electricity generation meter to be located as at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement) and approved by the Transmitting Utility, which shall register all Energy produced by a Facility and delivered to the Interconnection Point, and (b) with respect to a Site that has multiple Phases, the revenue quality electricity generation meter that is dedicated to measuring the energy output of the applicable Phase to be located as at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement) and approved by the Transmitting Utility, which shall register all Energy produced by the applicable Phase and delivered to the Interconnection Point. “Facility Recorded Adjustments” is defined in Section 4.12(f). “Facility Services” is defined in Section 4.1. “Facility Purchase Conditions” means for a relevant Facility that the Facility has not been Placed in Service (including specifically because the events described in clauses (2), (3) and (4) of the definition of Placed in Service have not occurred), but that (a) the events described in clause (1) of the definition of Placed in Service have occurred, and (b) all of Seller’s obligations under Section 3.3(a)(ii) have been performed. “Facility Services Warranty” is defined in Section 5.1. “Fair Market Value” means, with respect to any Facility, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65. “FedEx PPA” has the meaning set forth in Annex D. “FERC” means the Federal Energy Regulatory Commission and any successor. 8
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“Final Determination” means the earliest to occur of (a) the date on which a decision, judgment, decree or other order has been issued by any court of competent jurisdiction, which decision, judgment, decree, or other order has become final (i.e., all allowable appeals requested by the parties to the action have been exhausted or the time for instituting an appeal has expired or lapsed), (b) the date on which the Internal Revenue Service has reached a final administrative determination which, whether by law or agreement, is not subject to appeal, or (c) the date on which the time for instituting a claim, appeal, contest, or challenge to any notice or action by the Internal Revenue Service has expired or lapsed. Notwithstanding anything to the contrary herein, no party shall be required to pursue any appeal or action if the party has determined in good faith that such an appeal or action would not have a reasonable possibility of success, in which case any decision, decree, order, or administrative determination that is the subject of such opinion shall be deemed to be a Final Determination. “First A&R PUMA” is defined in the recitals. “Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Event” may include, provided that the conditions in (a) through (d) in the foregoing sentence are met, inability of Buyer to obtain or maintain market-based rate authority from FERC to operate any Facility (except to the extent such inability results from a Buyer-initiated change in Buyer’s business from that contemplated as of the Original PUMA Agreement Date and/or the assets or operations of any entity considered by FERC to be affiliated with Buyer), a failure or interruption of performance due to an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Notwithstanding the foregoing, Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Facilities so as to meet the respective warranties hereunder, or the supply of natural gas from any source other than an Approved LDC or any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier that results in a termination of the Equinix PPA based on a breach of Section 7.1(h)(i) of the Equinix PPA. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the applicable PPA or Site License (depending on which Facilities are affected), then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under such PPA or Site License such event or circumstance will not constitute a Force Majeure Event under this Agreement. “Fundamental Representation” means the representations provided in Section 8.1(b), Section 8.1(h), Section 8.1(k) and Section 8.1(o). 9
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“GAAP” means United States generally accepted accounting principles consistently applied. “Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority. “Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority. “Guaranty Bank Determination Date” is defined in Section 4.12(f). “Hazardous Material” means and includes those elements or compounds which are contained or regulated as a hazardous substance, toxic pollutant, pesticide, air pollutant, or as defined in any Environmental Law, order or decree of any Governmental Authority for the protection of human health, water, safety or the environment or is otherwise included in the definition of “Hazardous Materials,” “Hazardous Substance” or a similar term in a PPA or a Site License. “Home Depot PPA” has the meaning set forth in Annex D. “Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage (including any losses arising as a result of the loss or recapture of any ITC), obligation, payment, fine, cost or expense (including the cost and expense of any investigation, action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith). “Indemnified Party” is defined in Section 13.4. “Indemnifying Party” is defined in Section 13.4. “Indexed PPA” is defined in Section 4.11. “Indexed PPA Tolling Rate Guaranty” is defined in Section 4.12(a). “Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (a) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (b) all trade secrets, know-how and confidential and proprietary information; (c) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (d) all moral and economic rights of authors and inventors, however denominated, throughout the world; (e) unregistered and registered design rights and any registrations and applications for registration thereof; (f) trademarks, 10
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service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (g) semiconductor chip “mask” works, and registrations and applications for registration thereof, (h) database rights; (i) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (j) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world. “Interconnection Agreement” means an agreement between the PPA Customer (or Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility. “Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer. “Investor” means Southern PowerSecure Holdings, Inc. “Invoice Due Date” means the date specified on a Payment Notice duly delivered by Seller to Buyer for the Milestones achieved by certain Tranches and/or Facilities in a given calendar month. “IP License” is defined in Section 11.1. “IRS” means the Internal Revenue Service. “ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a). “Knowledge” means (a) as to any Person other than a natural person, the actual knowledge (including any knowledge which would reasonably have been obtained after due inquiry) of such Person and its managers, directors officers and employees who have responsibility for the transactions contemplated by this Agreement, and (b) in respect of any Person who is a natural Person, the actual knowledge (including any knowledge which would reasonably have been obtained after due inquiry) of such Person. “kW” means kilowatt. “kWh” means kilowatt-hour. “Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, NERC, any Person that NERC has delegated its authority to under the Federal Power Act or any Person that operates an interstate electric transmission system, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject. 11
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“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest. “Low-Pressure Gas Booster” means a component designed to increase the pressure of natural gas supplied to a Facility by the applicable local natural gas distribution company serving an applicable PPA Customer at the applicable Site to the level required for the ordinary operation of such Facility. “LREC Contract(s)” means each of the South Windsor LREC Contract and the Middletown LREC Contract. “Maintenance Specification Log” is defined in Section 6.1(a). “Major Service Provider” is defined in Section 4.6. “Managers” means Operations Manager and Buyer Manager. “Manufacturer’s Warranty Period” means, for each Facility, the period beginning on the date the applicable Facility achieves the requirements of subsections (a), (c) and (d) of the definition of “Commencement of Operations” and ending on the first (1st) anniversary of the date of Commencement of Operations of such Facility. “Material Adverse Effect” means, for any Person or Facility, as applicable, any change, effect or occurrence that, individually or in the aggregate, is or could reasonably be expected to be materially adverse to (a) the business, earnings, assets, results of operations, property or condition (financial or otherwise) of such Person or Facility, as applicable, (b) the validity or enforceability of any Transaction Document, any applicable PPA, any applicable Site License or the transactions contemplated by this Agreement, or (c) any Person’s (including any PPA Customer’s) ability to perform its obligations under any Transaction Document, any applicable PPA, any applicable Site License (including any material adverse effect on any customer that has, or could reasonably be expected to have, a material adverse impact on such customer’s ability to fully perform under any applicable PPA). “Maximum Liability” means, with respect to each Party, One Million Dollars ($1,000,000). “Middletown LREC Contract” means that certain Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Credits from Low or Zero Emission Projects, dated as of July 26, 2017, by and between FedEx Ground Package System, Inc. and the Connecticut Light and Power Company dba Eversource Energy, as assigned to 2017 ESA Project Company, LLC pursuant to that certain Assignment and Assumption Agreement dated as of October 24, 2017 by and between FedEx Ground Package System, Inc. and 2017 ESA Project Company, and assigned from 2017 ESA Project Company to Buyer pursuant to that certain Assignment and Assumption Agreement executed by 2017 ESA Project Company and Buyer as of the “Effective Date” of Amendment No. 2 to 2nd A&R PUMA. 12
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“Milestone(s)” means each of (a) the Deposit Milestone Requirements, (b) Shipment, and (c) Commencement of Operations. “Minimum Efficiency Level” means an Efficiency quotient of 45%. “Minimum kWh” means the product of (a) the number of hours in the applicable period minus the number of hours for each Facility, as of the last day of the applicable period following Commencement of Operations with respect to the applicable Facility when the operation of such Facility (i) (A) was subject to a Force Majeure Event, (B) was not delivering Energy, or was delivering Energy at a reduced level, because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (C) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), or (D) was impacted by a failure of the Battery Solution to perform in accordance with any warranty(ies) provided by the Battery Solution Manufacturer (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect), except, in each case, to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, or (ii) was not delivering Energy during any idle period specified in an Extension Agreement entered into pursuant to Section 4.1(c) hereof, and (b) the Minimum Power Product for the applicable period. “Minimum Power Product” means (a) when this term is used for the Performance Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Calendar Quarter multiplied by [***], and (b) when this term is used for the Performance Guaranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable calendar year multiplied by [***]. An example of a calculation of the Minimum Power Product is set forth in Annex A. “Monthly Report” is defined in Section 6.1(a). “MW” means megawatt. “Nameplate Capacity” means the maximum electrical output of a generator as rated by the manufacturer determined at the normal operating conditions designated by the manufacturer. “NERC” means the North American Electric Reliability Corporation or any successor. “NYC HHC PPA” is defined in Annex D. “Operations Manager” is defined in Section 4.8(a). “Original PUMA” is defined in the recitals. 13 [***] Confidential Treatment Requested
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“Original PUMA Agreement Date” means October 24, 2016. “Party” and “Parties” have the meanings set forth in the preamble. “Payment Certificate” means Seller’s Deposit Milestone Certificate or Seller’s Certificate of Installation, as applicable. “Payment Notice” means a notice delivered from Seller to Buyer pursuant to Section 2.4(c) in the form attached hereto as Exhibit D. “Performance Guaranty” is defined in Section 5.2. “Performance Guaranty Payment Cap” means the product of (x) Seven Hundred Twenty- Seven Dollars and Seventy-One Cents ($727.71) multiplied by (y) the System Capacity of all Bloom Systems in kW Purchased under this Agreement prior to the applicable date. “Performance Guaranty Payment Rate” means $[***] per kWh. “Performance Standards” is defined in Section 3.9. “Performance Warranty” is defined in Section 5.4(a). “Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements. “Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all Legal Requirements); (c) obligations or duties under easements, leases or other property rights; and (d) any other Liens agreed to in writing by Seller and Buyer. “Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof. “Placed in Service” means, with respect to any Facility, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Facility and the sale of power generated by the Facility in accordance with clause (4) of this definition, (2) satisfactory completion of critical tests necessary for the proper operation of such Facility in accordance with clause (4) of this definition, (3) synchronization of such Facility onto the electric distribution and transmission system of the applicable Transmitting Utility, and (4) the commencement of regular, continuous, daily operation of such Facility. 14 [***] Confidential Treatment Requested
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“Placed in Service Date” means, with respect to a Facility, the date upon which such Facility is Placed in Service. “Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been incorporated into Facilities which have been Placed in Service and which have not thereafter been removed from the Portfolio and/or repurchased by Seller pursuant to the terms of this Agreement. “Portfolio Warranty” is defined in Section 5.5(a). “PPA” means each power purchase, energy server use, energy services agreement, or similar agreement with a PPA Customer listed on Annex D hereto, as the same may be updated from time to time by the mutual agreement of the Parties. “PPA Customer” means each off-taker counter-party to a PPA. “PPA Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by Buyer to any Person and (ii) amounts received or receivable by Buyer from any Person. “PPA Warranties” is defined in Section 5.8(a). “PPA Warranty Reimbursement Payment” is defined in Section 5.8(a). “Project Model” means the economic model, incorporating a number of factors including the availability and amount of tax credits and other incentives, to be delivered from Seller to Buyer from time to time pursuant to Section 2.8. “Projected Revenues” is defined in Section 4.12(j)(ii). “Projected Tolling Rate(s)” is defined in Section 4.12(a). “Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States and/or approved or recommended by the NERC as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of electrical generating facilities, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements. “Purchase” is defined in Section 2.5. “Purchase Date” is defined in Section 2.5. 15
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“Purchase Order” means Buyer’s purchase order for a Facility or Facilities to be purchased by Buyer in substantially the form of Exhibit E. “Purchase Price” means a price for the design, installation and purchase of each Facility or Tranche, based on the aggregate System Capacity of the Bloom Systems comprising such Facility or Tranche, determined pursuant to Section 2.8, plus any Taxes for the account of Buyer under Section 2.3(c) in respect of such Facility; provided, however, that Taxes shall not be included in the calculation of the Purchase Price for invoices issued pursuant to Section 2.3(a)(i) or Section 2.3(a)(iii). “Purchase Price Adder(s)” means an addition to the Purchase Price for certain Facilities based on the additional equipment included in such Facilities, calculated as follows: (a) For Facilities including AOM(s), $[***] for each AOM; (b) For Facilities including a Battery Solution pursuant to any PPA, a price determined according to the terms and conditions of the Battery Solution Supply Agreement; (c) For Facilities including a Low-Pressure Gas Booster, $[***]/kW of the aggregate System Capacity of the Bloom Systems comprising such Facility; and (d) For Facilities including UPM(s), $[***] for each UPM. “Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (a) be qualified to appraise power systems similar to the Bloom Systems, and experienced in such businesses in the general geographic region of the relevant Facility, and (b) not be associated with either Buyer or Seller or any Affiliate thereof. If the Parties cannot agree on a third-party appraiser within fifteen (15) days of a Party invoking the Appraisal Procedure, then Xxxxxxxx & Xxxxxxx Incorporated shall act as the Qualified Appraiser. “Refund Value” means, with respect to any Facility (including Underperforming Facilities), the greater of (a) the Fair Market Value of such Facility (as determined under the Appraisal Procedure if Buyer and Seller cannot agree as to that Fair Market Value within ten (10) days)), and (b) 100% of the Purchase Price for such Facility until the first anniversary of Commencement of Operations of the applicable Facility, [***] on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Refund Value will be [***] of the Purchase Price), in each case as calculated as of the date that Seller becomes obligated to refund such amount to Buyer. For clarity, the Refund Value includes one hundred percent (100%) of the Taxes, if any, which were paid by or on behalf of Buyer pursuant to Section 2.3(c) for such Facility or one hundred percent (100%) of any Taxes, if any, which are required to be paid by or on behalf of Seller in connection with the return of such Facility. “Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors. 16 [***] Confidential Treatment Requested
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“SCADA” means the supervisory control and data acquisition systems. “Second A&R PUMA” is defined in the recitals. “Seller” is defined in the preamble. “Seller Default” is defined in Section 12.1. “Seller Deliverables” means, with respect to each Facility, the items listed in Exhibit C. “Seller Indemnitee” is defined in Section 13.2. “Seller’s Certificate of Installation” means a certificate, in the form attached hereto as Exhibit H, issued by Seller to Buyer pursuant to paragraph (e) of the definition of Commencement of Operations. “Seller’s Deposit Milestone Certificate” means a certificate, in the form attached hereto as Exhibit F, issued by Seller to Buyer pursuant to paragraph (c) of the definition of Deposit Milestone Requirements. “Seller’s Intellectual Property” is defined in Section 11.1. “Service Fees” is defined in Section 4.3(a). “Service Provider” means an operation and maintenance contractor appointed by Seller and approved by Buyer pursuant to Section 4.6. “Service Technicians” is defined in Section 4.2(d). “Sharing Payment(s)” is defined in Section 4.12(j)(iii). “Shipment” means for each Bloom System, shipment of such Bloom System from Seller’s manufacturing facility to the Site. “Shipment Date” means for each Bloom System, the date of Shipment. “Site” means the parcel of land licensed from a PPA Customer to Buyer under a Site License and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility. “Site License” means each agreement between Buyer and a PPA Customer regarding the license or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA. “Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for natural gas interconnection facilities, the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the 17
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applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations. “Software” shall mean all computer software that is necessary for Buyer to own and operate the Facilities in compliance with the terms of this Agreement, the PPAs, and the Site Licenses. “Software License” is defined in Section 11.2(a). “South Windsor LREC Contract” means that certain Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Credits from Low or Zero Emission Projects, dated as of July 28, 2016, by and between the Buyer and the Connecticut Light and Power Company dba Eversource Energy. “Southern Company” means The Southern Company (NYSE: SO). “Specifications” means the specifications for the Battery Solution and the Bloom Systems, as applicable, as set forth in Exhibit A. “System Capacity” means, with respect to a Bloom System, the “System Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System. The aggregate System Capacity of the Bloom Systems comprising each Facility shall be reflected in the Xxxx of Sale delivered by Seller to Buyer with respect to such Facility. “Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means: (a) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and (b) any liability for the payment of amounts with respect to payment of a type described in clause (a), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement. “Term” means the period which (a) shall commence on the Original PUMA Agreement Date and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility subject to the Warranty Period. 18
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“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement. “Third Party Warranty” is defined in Section 3.7. “Tolling Rate” means with respect to any period the specified rate used for the supply of electricity or for the conversion of natural gas into electricity in the calculation of the fees owed to Buyer by a PPA Customer pursuant to a PPA. Tolling Rates are set forth on a dollar-per-kWh ($/kWh) basis or a dollar-per-MMBtu ($/MMBtu) basis, as indicated in the applicable PPA. “Training Materials” is defined in Section 4.7. “Tranche” means an amount of Facilities, measured on the basis of the aggregate System Capacity of the Bloom Systems comprising such Facilities (in kW), for which Seller is invoicing Buyer pursuant to Section 2.3(a)(i). “Tranche Notice” is defined in Section 2.2. “Transaction Documents” means this Agreement and the Payment Certificates. “Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located. “Underperforming Facility” means any Facility that fails to deliver, in any Calendar Quarter during which the Portfolio fails to satisfy the Performance Warranty, a number of kWh greater than or equal to the product of (a) such Facility’s aggregate System Capacity multiplied by [***], and (b) the number of hours in such quarter minus the number of hours as of the last day of such quarter when such Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), or (iv) was impacted by a failure of the Battery Solution to perform in accordance with any warranty(ies) provided by the Battery Solution Manufacturer (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives. “UPM” means an uninterruptible power module, to be included in certain of the Facilities. “Warranty Period” means, for each Facility, the Manufacturer’s Warranty Period, as extended or renewed by Buyer pursuant to Section 4.1(b), in which case the Warranty Period shall mean the specified end date of the Warranty Period as so extended or renewed, 19 [***] Confidential Treatment Requested
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(ii) on the Shipment Date for the last Bloom System(s) in each Facility, (A) In the event that such Facility was previously included in a Tranche for which Buyer has made payment, [***] per kW ($[***]/kW) for such Facility calculated based on the System Capacity of the Bloom Systems comprising such Facility plus 100% of the Purchase Price Adder(s) applicable to such Facility, if any; and (B) In the event that such Facility was not previously included in a Tranche for which Buyer has made payment, [***] per kW ($[***]/kW) for such Facility calculated based on the System Capacity of the Bloom Systems comprising such Facility plus one hundred percent (100%) of the Purchase Price Adder(s) applicable to such Facility, if any; and (iii) upon Commencement of Operations for each Facility, the remainder of the Purchase Price, if any, not previously paid (calculated, and adjusted from time to time, in accordance with this Agreement), for such Facility, plus one hundred percent (100%) of the Taxes to be paid by Buyer pursuant to Section 2.3(c) for such Facility. (b) Each invoice issued pursuant to Section 2.3(a)(ii) and Section 2.3(a)(iii) shall include the following information for each applicable Facility: (i) Buyer’s Purchase Order number; (ii) the Tranche (indicated by the invoice date) in which such Facility is deemed to be included; (iii) the Site on which such Facility is installed or will be installed; (iv) the serial number and System Capacity of each Bloom System comprising such Facility, and purchase order number; (v) whether or not any AOM(s), Battery Solution, Low-Pressure Gas Booster(s) and/or UPM(s) are to be installed in connection with such Facility; (vi) the Purchase Price, including details of (A) all amounts previously paid towards or credited against the Purchase Price, and (B) all amounts remaining due and payable on the Purchase Price; (vii) the Shipment Date or expected Shipment Date, as applicable; (viii) the Purchase Date or expected Purchase Date, as applicable; and (ix) such other information as Buyer may reasonably request. 22 [***] Confidential Treatment Requested
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remedies, (i) suspend performance of its obligations hereunder for such Facility, or defer delivery of such Facility to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Facilities required under Section 2.3(a)(ii) and Section 2.3(a)(iii) above be made immediately prior to the Shipment of the applicable Bloom Systems, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Facilities for which no such default exists. (f) Seller shall promptly pay all subcontractors working on the Facilities delivered and installed under this Agreement (including, for clarification, subcontractors working off-Site), and shall, at the time of each payment made to any such subcontractor, obtain a partial or final lien waiver, as applicable, in a form approved by Buyer, and promptly provide Buyer with a copy of each such lien waiver. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Facility upon final payment of the Purchase Price for such Facility. Upon the failure of Seller to discharge a Lien required to be discharged under this Section 2.3, or else promptly to provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof, Buyer may, but shall not be obligated to, pay, discharge or obtain a bond or security for such Lien and, upon such payment, discharge or posting of security therefor, shall be entitled immediately to recover from Seller the amount thereof, together with all reasonable and necessary expenses actually incurred by Buyer in connection with such payment or discharge, or to set off all such amounts against any amounts owed by Buyer to Seller hereunder. After receipt of the portions of the Purchase Price for each Facility as provided in Section 2.3(a)(i) and Section 2.3(a)(ii), Seller will issue a statement of the balance of the Purchase Price for such Facility, being the amount which, once paid to Seller, will cause Seller to release its lien on the Facility. Seller hereby agrees that third parties may rely on each such statement. (g) Notwithstanding the foregoing in this Section 2.3 or any other provision of this Agreement to the contrary, if Buyer (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other Legal Requirements of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Facility hereunder, or if Shipment for the Bloom Systems comprising a Facility has already occurred, Seller 24
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(i) Seller shall be solely responsible for the means, methods, techniques, sequences, and procedures employed for execution and completion of the BOF Work, and shall perform and complete all BOF Work in accordance and consistent with the Performance Standards; (ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility; (iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform any of Seller’s work under this Agreement on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B to the extent applicable to the work to be performed by such subcontractor. Seller shall not be relieved from its obligation to provide any services hereunder if a subcontractor agrees to provide any or all of such services. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. To the extent that any PPA Customer has the right to request removal of any Seller or subcontractor personnel under a PPA or Site License, Seller shall cooperate with Buyer in complying with the terms and conditions of such PPA or Site License including by, upon written notification by Buyer that the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors is unacceptable to the applicable PPA Customer, promptly stopping such Person from performing any obligations hereunder and/or removing such Person from the applicable Site. Additionally, Buyer may bring to Seller’s attention any concerns regarding the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors, which concerns Seller shall consider in good faith and thereafter take such action as Seller deems appropriate under the circumstances. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work; 28
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with the installation manuals provided for such Bloom System and the applicable Site License, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Facility will be connected by Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities; (ii) Prior to Commencement of Operations of each Facility, Seller shall, perform an acceptance test not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller of each Bloom System incorporated into such Facility and the applicable BOF in the presence of Buyer (if Buyer elects to attend), and such Bloom Systems and applicable BOF shall have passed such test. Seller will, upon request by Buyer, inform Buyer of the date on which it expects to conduct the acceptance test of any Facility(ies) and cooperate with Buyer to provide Buyer with the opportunity to observe such testing to the extent practicable, provided, that in no event shall Seller be required to delay the performance of any acceptance test in order to allow Buyer to witness such test if all other pre-testing requirements have been satisfied; (iii) Seller shall cause Commencement of Operations for such Facility to occur within ninety (90) days of the date of Seller’s Deposit Milestone Certificate. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations; (iv) Seller will provide to Buyer, prior to the Commencement of Operations, a single line diagram of the Facility installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (each in paper copy and native electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of Section 48 of the Code; (v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility; (vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel and representatives of Buyer sufficient to instruct Buyer on operation of such Facility in conformance with Prudent Electrical Practices; and (vii) Following Commencement of Operations of a Facility, Seller shall promptly remove all waste materials and rubbish from and around the Site as well as all of its tools, construction equipment, machinery, and surplus materials as reasonably necessary to restore each Site to a condition reasonably satisfactory to such PPA Customer or as otherwise required by the applicable Site License. (b) Seller’s services under Section 3.1 through Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the 30
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the foregoing, Seller shall in any event comply with any and all response time(s) and/or corrective activity(ies) required by the applicable PPA(s). (c) Repair and Replacement of Power Modules. Buyer agrees that Seller may replace the power modules included in each Facility with power modules of a different model provided that such replacement model has been subjected to inspections and tests performed by Seller which indicate that such replacement power module model is reasonably expected to perform at least as well as the model it replaces; provided, however, that, upon Buyer’s request, Seller agrees to promptly provide Buyer with copies of such inspection and test results. Notwithstanding the foregoing, Seller represents to Buyer that it reasonably expects that any repair or replacement of power modules to be made within five (5) years of the date the applicable Facility was Placed in Service will have an aggregate value of replaced parts that is less than eighty percent (80%) of the Facility’s total value (the cost of the new parts plus the value of the remaining Facility originally Placed in Service). (d) Personnel. Seller shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Seller shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs to the extent Seller deems necessary, in its reasonable judgment. (e) Spare Parts. Seller shall establish and maintain an adequate inventory of spare Components in one or more locations to facilitate scheduled and unscheduled maintenance required on the Facilities. (f) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Seller shall have adopted and implemented programs and procedures, consistent with Prudent Electrical Practices, intended to ensure safe and reliable operation of the Facilities. Seller may update such programs and procedures from time-to-time during the Term as it may determine appropriate, in its reasonable judgment and in accordance with Prudent Electrical Practices. Buyer may, not more than once per calendar year and at Buyer’s sole cost and expense, review such programs and procedures from time to time to confirm compliance with Prudent Electrical Practices. Buyer may from time to time provide comments on any such Seller programs and procedures and Seller agrees to consider any such comments in good faith; provided that Buyer’s review and comment on any such program or procedure will not relieve Seller of any of its obligations under this Agreement. (g) PPA Customer Complaints. Seller will promptly provide notice to Buyer if Seller has received any written communication from any PPA Customer suggesting that such PPA Customer is dissatisfied with the operational performance of any Facility or with the manner in which EPC Services or Facility Services have been provided by Buyer, Seller or any other Service Provider in respect of any Facility. If any PPA Customer misdirects any written notice to Seller that should have been delivered to 35
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Facility for only a portion of any calendar month, the Service Fees due with respect to such partial calendar month shall be pro-rated based on the number of days such Facility Services were provided in respect of such Facility during the calendar month. (b) Commencing on the date each Facility achieves Commencement of Operations, with respect to each calendar month of such Facility’s Warranty Period, the Service Fees shall be invoiced on a separate invoice (and not pursuant to a Payment Notice) not later than five (5) Business Days prior to the first day of such calendar month, and, subject to Section 3.4(d) and Section 5.4, shall be payable no later than the thirty (30) calendar days following such proper delivery of such invoice; provided, that the pro rata Services Fees for the calendar month in which a Facility achieves Commencement of Operations shall be invoiced and paid with the Services Fees for the subsequent calendar month. Interest shall accrue, unless being contested in good faith, daily on the Service Fees not paid when due, at the lesser of the monthly rate of (i) one and five-tenths percent (1.5%) and (ii) the highest rate permissible by law on such unpaid balance. Seller shall be under no obligation to provide or perform services hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good faith, has not been paid in full (or offset pursuant to Section 3.4(d), Section 5.7 or Section 5.8) within thirty (30) days of invoice until such date upon which the Service Fee has been paid. (c) If Buyer disputes any amount shown in an invoice issued by Seller in accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 14.5. (d) Any disputed portion of an invoiced amount which was not paid under Section 4.3(c) and is determined as being due to Seller in accordance with the dispute resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 14.5 plus, if it is determined in accordance with the dispute resolution procedures that the disputed portion was not disputed in good faith, interest calculated in accordance with Section 4.3(b). (e) Each Party shall have the sole and absolute right to set off any undisputed amounts to which it is entitled to under this Agreement, including under Section 3.4(d), Section 5.7 or Section 5.8, against any amounts owed by such Party to the other Party under this Agreement. The deduction of any such amounts shall operate for all purposes as a complete discharge (to the extent of such deduction) of the obligation of such Party to pay the amount from which such deduction was withheld and made. Neither the exercise of, nor the failure to exercise, such right of setoff will constitute an election of remedies or limit the applicable Party in any manner in the enforcement of any other remedies that may be available to it. (f) Buyer will, promptly following receipt thereof, remit to Seller any and all payments received pursuant to the South Windsor LREC Contract. For the avoidance of 37
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twenty years of the term (including any extensions) of such Indexed PPA, and shall compensate Buyer for any shortfall in revenues pursuant to the Indexed PPAs in the event the aggregate revenues realized using actual Tolling Rates under the Indexed PPAs do not equal or exceed the aggregate revenues that would have been realized using Projected Tolling Rates, calculated on a weighted-average, net present value basis (the “Indexed PPA Tolling Rate Guaranty”). The Indexed PPA Tolling Rate Guaranty shall be calculated and paid as set forth in this Section 4.12. (b) Seller shall determine, within ten (10) Business Days following each Calculation Date under each Indexed PPA, whether the Actual Revenues for each Facility installed under such Indexed PPA equaled or exceeded the Projected Revenues for such Facility in the immediately-preceding Calculation Period. (c) If such calculation indicates that the Actual Revenues for a Facility for the applicable Calculation Period were greater than the Projected Revenues for the applicable Calculation Period, then the excess (in dollars) of Actual Revenues over Projected Revenues shall be recorded as a positive balance in the Indexed PPA Tolling Rate Guaranty Bank, after discounting such amount to reflect the net present value of such amount on the basis of a [***] cost of capital from Commencement of Operations of the applicable Facility through the Calculation Date. (d) If such calculation indicates that the Actual Revenues for a Facility for the applicable Calculation Period were less than the Projected Revenues for the applicable Calculation Period, then the excess (in dollars) of Projected Revenues over Actual Revenues shall be recorded as a negative balance in the Indexed PPA Tolling Rate Guaranty Bank, after discounting such amount to reflect the net present value of such amount on the basis of a [***] cost of capital from Commencement of Operations of the applicable Facility through the Calculation Date. (e) Seller shall report the balance of the Indexed PPA Tolling Rate Guaranty Bank to Buyer within thirty (30) days of each calculation made pursuant to Section 4.12(c) and Section 4.12(d), including details regarding the calculation of any adjustments of such Indexed PPA Tolling Rate Guaranty Bank made pursuant to Section 4.12(c) and Section 4.12(d) not previously reported by Seller. (f) The sum of all of the amounts recorded from time to time in the Indexed PPA Tolling Rate Guaranty Bank as of a particular date for a particular Facility pursuant to Section 4.12(c) and Section 4.12(d) are referred to herein as the “Facility Recorded Adjustments.” For purposes of determining the Indexed PPA Tolling Rate Guaranty Bank as of a given date (each, a “Guaranty Bank Determination Date”) for each Facility with Facility Recorded Adjustments, the Facility Recorded Adjustments amount shall be increased on the basis of a [***] cost of capital from Commencement of Operations of the applicable Facility through the Guaranty Bank Determination Date (the “Adjusted Facility Recorded Adjustments”). The aggregate of the Adjusted Facility Recorded Adjustments for all Facilities with Facility Recorded Adjustments as of the Guaranty Bank Determination Date is equal to the Indexed PPA Tolling Rate Guaranty Bank balance as of such date. 42 [***] Confidential Treatment Requested
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(g) Seller shall determine, within ten (10) Business Days following the fifth (5th), tenth (10th), fifteenth (15th), and, if Projected Tolling Rates are set forth on Exhibit L for a twenty (20) year term (including any extensions), twentieth (20th) anniversary of the Commencement of Operations Date of the final Facility installed pursuant to an Indexed PPA, as described in Section 4.12(f), the Indexed PPA Tolling Rate Guaranty Bank balance using the date of such anniversary as the applicable Guaranty Bank Determination Date. Seller shall report the balance of the Indexed PPA Tolling Rate Guaranty Bank to Buyer within ten (10) days of each such determination made pursuant to the immediately preceding sentence, including details regarding the calculation thereof, and, if the Indexed PPA Tolling Rate Guaranty Bank as of such anniversary has a negative balance, then Seller shall make a payment to Buyer within fifteen (15) days of receipt of such claim equal to the absolute value of the balance of the Indexed PPA Tolling Rate Guaranty Bank. Upon payment of such amount, the Indexed PPA Tolling Rate Guaranty Bank and all Facility Recorded Adjustments for all Facilities with Facility Recorded Adjustments as of such Guaranty Bank Determination Date shall be reset to zero as of such Guaranty Bank Determination Date. (h) If Seller fails to perform any calculations of Facility Recorded Adjustments or any calculation of the Indexed PPA Tolling Rate Guaranty Bank balance within the periods required by this Section 4.12, Buyer may perform its own calculations and inform Seller of the results of such calculations, which shall be binding on the Parties unless Seller notifies Buyer of any calculation errors within fifteen (15) Business Days of Seller’s receipt of Buyer’s calculations. (i) If a Party disagrees with any calculations of the other Party, that Party shall notify such other Party of such disagreement within fifteen (15) Business Days of receipt of such other Party’s calculations. Following any notice of dispute under this Section 4.12(f), the Parties shall handle such dispute under Section 14.5. (j) For purposes of the Indexed PPA Tolling Rate Guaranty, the following terms shall have the following meanings: (i) “Actual Revenues” means, for a Facility, the product (A) of (x) the Actual kWh delivered by such Facility in the applicable period, multiplied by (y) the actual Tolling Rate for such Facility in the applicable period, less (B) a ratable portion of any Sharing Payments owed by Buyer to the applicable PPA Customer for such period (calculated on the basis of the applicable Facility’s pro rata portion of the aggregate System Capacity of all Facilities installed pursuant to the applicable Indexed PPA that have achieved Commencement of Operations). (ii) “Projected Revenues” means, for a Facility, the product of (A) the Actual kWh delivered by such Facility in the applicable period, multiplied by (B) the Projected Tolling Rate for such Facility in the applicable period. (iii) “Sharing Payments” means, for each Indexed PPA, any payments owed by Buyer to the applicable PPA Customer (including offsets against amounts 43
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(c) In the case of a claim relating to the Efficiency Warranty, upon receipt of such claim and verification by Seller that such Efficiency Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases within ninety (90) days, repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Efficiency Warranty. If Seller is obligated to repair or replace any Facility pursuant to this Section 5.7(c) and such repair or replacement is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such Facility (calculated as of the date of such refund), in which case Seller shall be deemed to have taken title to such Facility, and such Facility shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided that such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of any Facility within ninety (90) days of the date on which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Facility in the time period in this Section 5.7(c) then Buyer has the right to require Seller (in which case Seller agrees) to procure return of the Facility in question to Seller (at Seller’s cost) and Seller will refund to Buyer the Refund Value of such Facility, in which case Seller shall be deemed to have taken title to such Facility upon payment of the Refund Value, and such Facility shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. The rights and obligations of the Parties under this this Section 5.7(c) are in addition to and separate from any other rights of Buyer under this ARTICLE V. (d) In the event of a claim relating to the Performance Warranty, upon receipt of such notice and verification by Seller that such Performance Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases prior to the final day of the immediately following Calendar Quarter, repair or replace, at Seller’s sole option and discretion, a sufficient number of Underperforming Facilities in order for the Portfolio to perform consistent with the Performance Warranty at the end of such Calendar Quarter. If Seller is obligated to repair or replace any Facilities pursuant to this Section 5.7(d) and such repair or replacement is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such number of Underperforming Facilities (calculated as of the date of such refund) as will cause the remaining Portfolio to comply with the Performance Warranty calculated through the final day of the applicable Calendar Quarter, in which case Seller shall be deemed to have taken title to such Underperforming Facilities, and such Underperforming Facilities shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific 47
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nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided that such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of such sufficient number of Underperforming Facilities within ninety (90) days of the date on which Seller received notice of a claim, or repurchased such sufficient number of Underperforming Facilities in the time period in this Section 5.7(d), then Buyer has the right to require Seller (in which case Seller agrees) to procure return of such number of Underperforming Facilities (calculated as of the date of such refund) as will cause the remaining Portfolio to comply with the Performance Warranty calculated through the final day of the applicable Calendar Quarter) and Seller will refund to Buyer the Refund Value of such Underperforming Facilities, in which case Seller shall be deemed to have taken title to such Underperforming Facilities upon payment of the Refund Value, and such Facilities shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. In the event that Seller is obligated to repurchase any Underperforming Facilities pursuant to this Section 5.7(d) in connection with a Performance Warranty claim, the first Underperforming Facility repurchased shall be the Facility with the lowest output as a factor of its System Capacity in the prior Calendar Quarter, followed by the next lowest, and so on until Seller’s repurchase obligations are satisfied. (e) Buyer is hereby notified that refurbished parts may be used in repair or replacement activities, provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems purchased hereunder that lists all components that have been replaced in any individual Bloom System. If it is determined that a Facility will be removed pursuant to Section 5.7(c) or Section 5.7(d), Seller shall at its sole cost and expense remove the Facility and all ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License. (f) WITHOUT IN ANY WAY LIMITING (I) SELLER’S OBLIGATION TO INDEMNIFY BUYER PURSUANT TO SECTION 13.3(A)(II) IN RESPECT OF A BREACH OF SECTION 8.1(M), EXCEPT AS EXPLICITLY SET FORTH IN SECTION 5.8, THE REMEDIES SET FORTH IN THIS SECTION 5.7 ARE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE AND EXCLUSIVE LIABILITY, ARISING OUT OF A FAILURE OF ANY FACILITY OR THE PORTFOLIO, AS APPLICABLE, TO PERFORM IN ACCORDANCE WITH THE WARRANTY SPECIFICATIONS. 48
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Section 5.8 Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”) except to the extent such liability results from a failure (not attributable to a Bloom Component Defect) of the Battery Solution to perform in accordance with any warranty(ies) provided by the Battery Solution Manufacturer. Without in any way limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (ii) Seller shall indemnify and hold Buyer harmless for any amount Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(b) with respect to claims relating to the Performance Guaranty and shall not count against such cap. (b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. (c) Notwithstanding anything to the contrary set forth herein, Seller shall have no liability to Buyer under this Section 5.8 to the extent that Seller’s liability under any PPA Warranty is increased due to such PPA Warranty having been modified, amended, or otherwise changed in any way from the terms of such PPA Warranty as set forth in the applicable PPA as of the Original PUMA Agreement Date (or, for PPAs added after the Original PUMA Agreement Date, as set forth in the applicable PPA as of such date) unless Seller has consented in writing to such modification, amendment, or change. 49
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in connection with its responsibilities hereunder, detailing the nature of the problems with a Facility detected, if any, and the specifics of the problem resolution and submitted to Buyer within ten (10) Business Days of the date when such problem is resolved or within ten (10) Business Days of a routine inspection or service that did not identify any issues; (iv) a monthly report submitted to Buyer within fifteen (15) days after the end of each month (“Monthly Report”) detailing and documenting, on a monthly basis, the (A) Efficiency and total output (in kWh) of each Facility comprising the Portfolio, and (B) total output (in kWh) of the Portfolio, in each case for the preceding month; (v) records and documentation in respect of each Facility or the Portfolio, as applicable, regarding the compliance of such Facility or the Portfolio, as applicable, with the Warranty Specifications and any applicable PPA Warranties during the Warranty Period; (vi) any other records, reports, or other documentation related to the production and sale of energy from the Facilities or that Buyer is required to maintain in respect of any Facility under any applicable PPA; (vii) until the Commencement of Operations Date of the final Facility to achieve such milestone, a “Construction Report” delivered in connection with the Payment Notice corresponding to each invoice delivered pursuant to Section 2.3(a)(iii), specifying (A) the forecasted commencement of construction date, shipment date and Commencement of Operations Date of each Facility projected to be included in the Portfolio, (B) the actual commencement of construction date, shipment date and Commencement of Operations Date of each Facility included in the Portfolio as of the date of such Construction Report, and (C) a summary narrative regarding the source of any delays in the achievement of any of the foregoing milestones as compared to the dates forecasted in the immediately prior Construction Report; and (viii) any other records, reports, or other documentation reasonably requested by Buyer, including as necessary to support any ITC eligibility determination with respect to a Facility. Seller agrees to use commercially reasonable efforts to promptly provide such documentation to Buyer, and shall provide a reasonable explanation for any inability to provide such documentation. (b) All such records required to be created and maintained pursuant to Section 6.1(a) shall (i) be kept available at Seller’s office and made available for Buyer’s inspection upon request at all reasonable times, and (ii) be retained for the relevant retention period provided in 18 C.F.R. § 368.3 or any successor regulation as amended from time, to the extent applicable to Seller, or any longer period required under any PPA. Any documentation prepared by Seller during the Term for the purposes of this Agreement shall be directly prepared for Buyer’s benefit and immediately become Buyer’s property. Any such documentation shall be stored by Seller on behalf of Buyer 51
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insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). (c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on Seller or its ability to perform its obligations hereunder. (d) Legal Proceedings. There are no pending or, to Seller’s Knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non- judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder. (e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code and has provided a Certificate of Non-Foreign Status in the form and substance required by Section 1445 of the Code and the regulations thereunder. (f) Purchase Price of Facility. The Purchase Price paid for each Facility is an amount that is equal to the Fair Market Value of each Facility, as determined on an arms- length basis. (g) Title; Liens. As of each date title is required to pass to Buyer hereunder with respect to any assets comprising a Facility, Seller has and will convey good and marketable title to such assets to be sold to Buyer on such date and all such assets are free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Facility or Site, then Seller shall cause such Liens to be discharged, or shall provide a bond in an amount and from a surety acceptable to Buyer to protect 54
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(iv) No private letter ruling has been obtained for the transactions contemplated hereunder from the IRS. (v) As of the Purchase Date of each Facility, such Facility was not originally Placed in Service and, specifically, clauses (3) and (4) of the definition of the term “Placed in Service” have not been met with respect to such Facility. (vi) No Facility is comprised of any property that (A) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (B) is imported property of the kind described in Code Section 168(g)(6), (C) is “tax-exempt use property” within the meaning of Code Section 168(h), or (D) is property described in Code Section 50(b). (vii) Other than de minimis property, material or parts, each Facility consists of property, materials or parts not used by any Person prior to having been first placed in a state of readiness and availability for their specific design function as part of the Facility. (viii) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code. (ix) No grants (for purposes of this paragraph, “grants” shall not include any credits, benefits, emissions reductions, offsets or allowances, howsoever entitled, attributable to the generation from the Facilities, and its respective avoided emission of pollutants) have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which Seller is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility. (x) Seller is not related to any PPA Customer within the meaning of Code Section 267 or Code Section 707. (l) Bankruptcy. No event of Bankruptcy has occurred with respect to Seller. (m) Bloom System Performance. Assuming that Seller maintains each of the Facilities consistent with the Preventative Maintenance Schedule, Seller is not aware of any circumstances which could reasonably be expected to prevent the Portfolio from performing in accordance with the Warranty Specifications and the PPA Warranties for the Warranty Period. (n) Material Adverse Effect. 56
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to the Facilities, and such other purposes, if any, expressly provided herein, and (ii) to restrict access to such information as provided in Section 10.3(b). (b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Facility and no Buyer Default has occurred and is continuing) or shall be certified by Buyer as having been destroyed, unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed. Notwithstanding the foregoing, each Party and its Representatives may each retain archival copies of any Confidential Information to the extent required by law, regulation or professional standards or copies of Confidential Information created pursuant to the automatic backing-up of electronic files where the delivery or destruction of such files would cause undue hardship to the receiving Party, so long as any such archival or electronic file back-up copies are accessible only to legal or information technology personnel, provided that such Confidential Information will continue to be subject to the terms of this Agreement. (c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Facilities are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Facilities, documentation or Software without Seller’s express advance written permission. Subject to ARTICLE XI hereof, Buyer agrees not to remove the covering of any Bloom System, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Facility or Software provided by Seller. Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement, only Seller or its authorized representatives may open or access the interior of a Facility. Notwithstanding the foregoing or anything else herein to the contrary, and without limitation of the rights set forth in ARTICLE XI hereof, if any Facility is no longer covered by this Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Facility as a result of the termination of this Agreement with respect to such Facility (A) in connection with a Seller Default or (B) in connection with the expiration of the Extended Warranty Period, Buyer shall be entitled to maintain, or cause a third party to maintain, such Facility, including replacing Components as needed or desired; provided that: (i) No less than thirty (30) calendar days prior to the event of such termination pursuant to subsection (B) above, to the extent Buyer requires any maintenance services for such Facility following such termination, Buyer shall notify Seller of such requirements in writing. If Seller desires to perform such maintenance services, Seller shall provide within five (5) Business Days to Buyer the material terms and conditions (including, without limitation, the scope of services offered, the price(s) quoted for such services, and the terms of any 60
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confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code. (b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 10.2, a Party may disclose Confidential Information received by it to its and its Affiliates’ actual or potential investors or financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential. (c) Securities Filings. A Party may file this Agreement as an exhibit to any relevant filing with the Securities Exchange Commission (or equivalent foreign agency) in accordance with Legal Requirements only after complying with the procedure set forth in this Section 10.3(c). In such event, the Party seeking such disclosure shall prepare a draft confidential treatment request and proposed redacted version of this Agreement to request confidential treatment for this Agreement, and the other Party agrees to promptly (and in any event, no less than fourteen (14) days after receipt of such confidential treatment request and proposed redactions) give its input in a reasonable manner in order to allow the Party seeking disclosure to file its request within the time lines prescribed by Legal Requirements. The Party seeking such disclosure shall exercise commercially reasonable efforts to obtain confidential treatment of the Agreement from the Securities Exchange Commission (or equivalent foreign agency) as represented by the redacted version reviewed by the other Party. Each Party shall bear its own costs in connection with such efforts. (d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against the other Party, (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their respective Affiliates, (iv) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in Buyer, (v) a disposition or proposed disposition by Buyer of any Bloom System or Facility, or (vi) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA or a Site License, provided that, in the case of items (iii), (iv) and (v), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non- disclosing party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential information relating to the potential financing or purchaser. No disclosures of Confidential Information shall be made by 62
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covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith. Section 14.3 Notices. All notices, provisions of Documentation, reports, certifications, or other documentation, and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof and that any notice provided by electronic mail will be followed promptly by another form of notice consistent with this Section 14.3 and will be effective when such follow-up notice is deemed effective): To Seller: Bloom Energy Corporation 0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX 00000-0000 Attention: [***] Telephone: [***] Fax: [***] Email: [***] To Buyer: 2016 ESA Project Company, LLC c/o Southern PowerSecure Holdings, Inc. c/o PowerSecure, Inc. 0000 Xxxxxxxx Xxxxxxxx Xx. Xxxx Xxxxxx XX 00000 Attention: President and Chief Executive Officer Email: [***][***] and to: Southern Company Services, Inc. 30 Xxxx Xxxxx Xx. Blvd., NW Bin SC 1203 Xxxxxxx, XX 00000 Attention: General Counsel Email: [***] with a copy to: Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attention: [***] Telephone: [***] Email: [***] 75 [***] Confidential Treatment Requested
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IN WITNESS WHEREOF, Buyer and Seller have caused this Third Amended and Restated Purchase, Use and Maintenance Agreement to be signed by their respective duly authorized officers as of the Agreement Date. BUYER: SELLER: 2016 ESA PROJECT COMPANY, LLC BLOOM ENERGY CORPORATION a Delaware limited liability company a Delaware corporation By: ____________________________ By: ____________________________ Name: Name: Title: Title: [Signature Page to Third Amended and Restated Purchase, Use and Maintenance Agreement]
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Annex A Minimum Power Product Example Calculation Sample Performance Warranty Example Calculation Assumptions Number of Facilities in Portfolio 46 System Capacity (per Facility) 200 kW Performance Warranty 86% Minimum Power Product Analysis Minimum Power Product 7,912 kW Sample Performance Guaranty Example Calculation Assumptions Number of Facilities in Portfolio 46 System Capacity 200 kW Performance Guaranty [***] Year Minimum Power Product Analysis Minimum Power Product [***] kW ANNEX A-1 [***] Confidential Treatment Requested
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Annex B Insurance Insurance. At all times during the Term, without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to Buyer of material adverse change is not available on commercially reasonable terms then Seller shall provide Buyer with such notice as soon as reasonably possible after becoming aware of such change; provided, that following the Commencement of Operations Date with respect to a Facility, the insurance required hereunder shall only pertain to Seller’s Facility Services (including, for clarity, any removal or restoration services provided by Seller): (a) Worker's Compensation Insurance as required by the laws of the state in which Seller’s employees are performing EPC Services or Facility Services; (b) Employer's liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000.00) per occurrence; (c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate limit at policy inception; (d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than One Million Dollars ($1,000,000.00), combined single limit per occurrence; (e) Umbrella liability insurance acting in excess of underlying employer’s liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000.00) per occurrence, except that any subcontractors shall be required to maintain such insurance with limits of not less than Three Million Dollars ($3,000,000.00); (f) Professional errors and omission insurance with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence; (g) Environmental/pollution liability insurance with a limit of not less than One Million Dollars ($1,000,000.00) per claim; (h) Builder’s Risk/Installation Coverage for each Facility, with replacement costs and a delay in startup component (for avoidance of doubt, this requirement is only applicable, with respect to each Facility, until such Facility’s Commencement of Operations Date); and (i) Marine Cargo - Transit coverage (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment ANNEX B-1
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involving the Facility at all times for which the Seller bears or has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading, unloading and temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $50,000 for physical damage and other terms and conditions acceptable to the Buyer. For avoidance of doubt, (i) this requirement is only applicable during installation and is not required to be maintained with respect to any Facility after such Facility’s Commencement of Operations Date, and (ii) this requirement shall not apply to any subcontractor except those engaged to transport materials owned by Seller during such transit. Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except for worker’s compensation. The required insurance must be written as a primary policy not contributing to or in excess of any policies carried by Buyer, and each must contain a waiver of subrogation, in form and substance reasonably satisfactory to Buyer, in favor of Buyer. Additionally, Seller shall procure, on behalf of Buyer, any insurance coverages with respect to commercial general liability and excess liability required to be carried by Buyer pursuant to the NYC HHC PPA pursuant to policies that comply with all requirements set forth in such NYC HHC PPA. The insurances contemplated in this clause are primary. The Parties acknowledge that, if a claim is made under any of the insurances contemplated in this Agreement, it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual coverage to the full policy limit. Where applicable, each of these insurances will: (a) be effected with an insurer reasonably acceptable to Buyer; (b) contain a waiver of subrogation in favor of Buyer; (c) contain deductibles in accordance with prudent industry practice and approved by Buyer acting reasonably; and (d) include a provision that such insurance is primary insurance with respect to the interests of Buyer and Seller and that any other insurance maintained by Buyer is excess and not contributory insurance with the insurances required under this Agreement. Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis. ANNEX X-0
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Xxxxx X Xxxxxxxx Xxxxxxxx Claim Example Calculation and Amounts Payable Quarterly Performance Warranty Claim Example Calculation Assumptions Number of Systems 46 System Capacity 200 kW Hours/Day 24 Hours Measurement Period 90 Days Force Majeure Outage in Period(1) 5 Hours PPA Customer Outage in Period(1) 0 Hours Legal/Grid Outage in Period(1) 0 Hours Battery Solution Outage in Period(1) 0 Hours Starting Performance Warranty Bank Balance 3,985,900 kWh Quarterly Performance Warranty Analysis Minimum kWh(2) [***] kWh Actual kWh 15,500,160 kWh Underperformance (kWh) [***] kWh Performance Warranty Bank Adjustment Starting Balance 3,985,900 kWh Debit [***] kWh Ending Balance [***] kWh Quarterly Performance Warranty Claim? NO (1) As defined by “Minimum kWh.” (2) Minimum kWh = ((Measurement Period Days * 24 Hours/Day) - Force Majeure Hours - PPA Customer Outage Hours - Legal/Grid Outage Hours – Battery Solution Outage Hours) * Minimum Power Product(3) (3) As calculated per Annex A. ANNEX C-1 [***] Confidential Treatment Requested
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Annual Performance Guaranty Claim Example Calculation Assumptions Number of Systems 46 System Capacity 200 kW Hours/Day 24 Hours Measurement Period 365 Days Force Majeure Outage in Period (1) 5 Hours PPA Customer Outage in Period(1) 0 Hours Legal/Grid Outage in Period(1) 0 Hours Battery Solution Outage in Period(1) 0 Hours Performance Guaranty Payment Rate $[***] /kWh Starting Performance Guaranty Bank Balance 2,508,000 kWh Annual Performance Guaranty Analysis Minimum kWh(2) 76,518,700 kWh Actual kWh [***] kWh Underperformance (kWh) [***] kWh Performance Guaranty Bank Adjustment Starting Balance 2,508,000 kWh Debit [***] kWh Ending Balance [***] kWh Performance Guaranty Payment(4) $[***] Notes: (1) As defined by “Minimum kWh.” (2) Minimum kWh = ((Measurement Period Days * 24 Hours/Day) – Force Majeure Hours – PPA Customer Outage Hours – Legal/Grid Outage Hours - Battery Solution Outage Hours) * Minimum Power Product(3) (3) As calculated per Annex A. (4) Performance Guaranty Payment = (absolute value of Performance Guaranty Bank ending balance) * (Performance Guaranty Payment Rate). Following such payment, the Performance Guaranty Bank balance is increased to zero. ANNEX C-2 [***] Confidential Treatment Requested
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Annex D List of PPAs Updated as of: September 26, 2018 1. That certain Amended and Restated Energy Server Use and License Agreement, dated as of October 27, 2016, by and between Home Depot U.S.A., Inc. and Buyer, as amended by (a) that certain First Amendment to Amended and Restated Energy Server Use and License Agreement dated Xxxxx 00, 0000, (x) that certain Second Amendment to Amended and Restated Energy Server Use and License Agreement dated January 29, 2018, and (c) that certain Third Amendment to Amended and Restated Energy Server Use and License Agreement dated September 26, 2018 (the “Home Depot PPA”). 2. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17012, dated as of June 30, 2016, by and among Xxxxxx Foundation Hospitals, Xxxxxx Foundation Health Plan, Inc., and Buyer. 3. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17013, dated as of June 30, 2016, by and among Xxxxxx Foundation Hospitals, Xxxxxx Foundation Health Plan, Inc., and Buyer. 4. That certain Energy Server Use Agreement, dated as of September 27, 2016, by and between FedEx Ground Package System, Inc. and Buyer (the “FedEx PPA”). 5. That certain Energy Server Use and License Agreement, dated as of September 30, 2016, by and between Xxxx Memorial Hospital Presbyterian and Buyer. 6. That certain Energy Server Use and License Agreement, dated as of February 15, 2017, by and between Home Depot U.S.A., Inc. and Buyer. 7. That certain Energy Server Use and License Agreement, dated as of March 14, 2017, by and between San Diego Community College District and Buyer. 8. That certain Energy System Use Agreement, dated as of March 24, 2017, by and between AT&T Corp. and Buyer (the “AT&T PPA”). 9. That certain Energy Server Use and License Agreement, dated as of May 31, 2017, by and between Equinix, Inc. and Buyer, together with the Equinix Indemnity Agreement and the Equinix Landlord Consents (collectively, the “Equinix PPA”). 10. That certain Energy Server Use and License Agreement, dated as of August 30, 2017, by and between Intel Corporation and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of September 11, 2017, by and between 2017 ESA Project Company, LLC and Buyer. 11. That certain Energy Server Use and License Agreement, dated as of December 28, 2017, by and between Intel Corporation and Buyer. ANNEX D-1
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12. That certain Energy Services Agreement, dated as of September 29, 2017, by and between The State University of New York and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of April 26, 2018, by and between 2017 ESA Project Company, LLC and Buyer. 13. That certain Energy Server Use Agreement, dated as of November 15, 2017, by and between FedEx Ground Package System, Inc. and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of June 22, 2018, by and between 2017 ESA Project Company, LLC and Buyer. 14. That certain Energy Services Agreement, dated as of November 30, 2017, by and between Long Island University and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of June 22, 2018, by and between 2017 ESA Project Company, LLC and Buyer. 15. That certain Energy Server Use and License Agreement, dated as of November 30, 2017, by and between New York City Health and Hospitals Corporation and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of June 22, 2018, by and between 2017 ESA Project Company, LLC and Buyer (the “NYC HHC PPA”). 16. That certain Energy Services Agreement, dated as of June 29, 2018, by and between New York State Office of Mental Health and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of June 30, 2018, by and between 2017 ESA Project Company, LLC and Buyer. 17. That certain Energy Services Agreement, dated as of November 10, 2017, by and between Agilent Technologies, Inc. and 2017 Fuel Cell Operating Company I, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of September 26, 2018, by and between 2017 Fuel Cell Operating Company I, LLC and Buyer. 18. That certain Energy Services Agreement, dated as of December 8, 2017, by and between Xxxxxx Fresh Foods, Inc. and 2017 Fuel Cell Operating Company I, LLC, as amended by that certain First Amendment to Energy Services Agreement, dated as of September 14, 2018, by and between Xxxxxx Fresh Foods, Inc. and 2017 Fuel Cell Operating Company I, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of September 26, 2018, by and between 2017 Fuel Cell Operating Company I, LLC and Buyer. 19. That certain Energy Services Agreement, dated as of March 29, 2018, by and between II- VI Incorporated and 2017 Fuel Cell Operating Company I, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of September 26, 2018, by and between 2017 Fuel Cell Operating Company I, LLC and Buyer. 20. That certain Energy Services Agreement, dated as of September 18, 2018, by and between CoreSite Real Estate 1656 XxXxxxxx, X.X. and Buyer (the “CoreSite PPA”). ANNEX D-2
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Exhibit A Specifications For the Battery Solution: Energy storage [***]: [***] of beginning of life capacity. A typical Home Depot installation might use [***] for [***] of beginning of life capacity in order to achieve contract targets of [***]. Power discharge [***]: [***] per [***]; [***] per [***]. A typical Home Depot installation will have a [***] discharge capability. Power charge [***]: [***] per [***]; [***] per [***]. A typical Home Depot installation will have a [***] charge capability. Cabinet dimensions: The team will work to find the most space efficient solution. A cabinet which holds [***] of storage and associated power electronics and air handling would have approximate dimension of: [***]” in depth; [***]” in width and [***]” in height. Cabinet environmental rating: Outdoor rated; [***] C to [***] C. For the Bloom Systems System Capacity: Configuration-dependent. Each Facility will be composed of an appropriate number of Bloom Systems in order to achieve the desired System Capacity. Electrical Connection: 480 V, 3-phase, 60 Hz Fuels: Natural Gas, Directed Biogas Input Fuel Pressure: 10-18 psig (15 psig nominal) Water: None during normal operation NOx: < 0.01 lbs/MWh Sox: Negligible CO: <0.05 lbs/MWh VOCs: < 0.02 lbs/MWh Weight: 14.3 tons Dimensions (variable layouts): 14'9" x 8'9" x 7' or 29'6" x 4'5" x 7'5" Temperature Range: -20° to 45° C Humidity: 0% to 100% Location: Outdoor Noise: < 70 dBA @ 6 feet Exhibit A-1 [***] Confidential Treatment Requested
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Exhibit B Form of Xxxx of Sale XXXX OF SALE This XXXX OF SALE, dated as of __________ __, 201_ is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2016 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Purchase, Use and Maintenance Agreement, dated as of October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”). Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the PUMA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment . This Xxxx of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. This Xxxx of Sale shall be governed by, and construed in accordance with, the laws of the State of California. [Signature Page Follows] [Note to Draft: To be revised as appropriate when used in connection with return of Facilities to Bloom] Exhibit B-1
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IN WITNESS WHEREOF, the parties hereto have caused this Xxxx of Sale to be signed by their respective duly authorized officers as of the date first written above. SELLER: BLOOM ENERGY CORPORATION By: __________________________ Name: Title: BUYER: 2016 ESA PROJECT COMPANY, LLC By: __________________________ Name: Title: Exhibit B-2
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Attachment A to Xxxx of Sale Purchased System Exhibit B-3
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Seller shall submit the items listed below on or before ninety (90) days following the Commencement of Operations: 1. Third party vendor drawings ([***] battery specifications and drawings to be provided by PowerSecure if applicable) 2. Safety Documentation for Bloom Personnel and Subcontractors 3. Final OSHA/Cal-OSHA 300Log (not required to be organized by Site) 4. Final Incident Reports (to include First Aid logs, Final Root Cause Analysis Reports, and Final Near Miss Reports) 5. Quality Documentation for Construction activities (if applicable) 6. As-built drawings 7. Permitting documentation Seller will prepare in individually organized volumes of the Seller Deliverables and deliver to Buyer for Buyer’s approval two sets of such required manuals. Seller will prepare and deliver to Buyer two (2) electronic copies on CDs or USB flash drive, at least one of such copy will be in native format (if available to Seller) to allow Buyer subsequently to modify or update the same. Seller shall transfer Seller Deliverables to Buyer and they shall become the sole property of Buyer. Exhibit C-2 [***] Confidential Treatment Requested
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Exhibit D Form of Payment Notice To: 2016 ESA PROJECT COMPANY, LLC (Buyer) This Payment Notice, dated ________, 201_, is given pursuant to Section 2.4(c) of the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Payment Notice. Seller hereby notifies Buyer that, in connection with the Invoice Due Date occurring on ___________, 201__, Buyer shall be obligated to make Purchase Price payments to Bloom in the aggregate amount of $__________. The Purchase Price to be paid by Buyer on the above-mentioned Invoice Due Date is comprised of the following amounts: 1) $______ of Purchase Price payments for a Tranche composed of Facilities with aggregate System Capacity __kW, which amount equals [***] per kW ($[***]/kW) of System Capacity of the Facilities included in such Tranche. 2) $______ of Purchase Price payments in connection with the Shipment of the final Bloom System to be installed in Facilities with aggregate System Capacity of __kW, which amount represents [***] per kW ($[***]/kW) of System Capacity of Facilities that have Shipped and were included in a Tranche for which Buyer has previously made a Purchase Price payment, plus 100% of the Purchase Price Adder(s) applicable to such Facilities, if any. 3) $______ of Purchase Price payments in connection with the Shipment of the final Bloom System to be installed in Facilities with aggregate System Capacity of __kW, which amount represents [***] per kW ($[***]/kW) f System Capacity of Facilities that have Shipped and were not included in a Tranche for which Buyer has previously made a Purchase Price payment, plus 100% of the Purchase Price Adder(s) applicable to such Facilities, if any. 4) $______ of Purchase Price payments in connection with the Commencement of Operations of Facilities with aggregate System Capacity of ___kW, which amount represents, the remaining unpaid Purchase Price for such Facilities, plus one hundred percent (100%) of the Taxes to be paid by Buyer pursuant to Section 2.3(c) for such Facilities. Exhibit D-1 [***] Confidential Treatment Requested
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Included with this Payment Notice is supporting documentation (i.e., Seller’s Deposit Milestone Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the achievement of all applicable Milestones achieved by the Tranche and/or Facilities referenced above. Seller hereby certifies that each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Payment Notice. This Payment Notice may be relied upon by Buyer. Signed for and on behalf of BLOOM ENERGY CORPORATION By: __________________________ Name: __________________________ Title: __________________________ Exhibit D-2
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Exhibit E Form of Purchase Order Exhibit E-1
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Exhibit F Form of Seller’s Deposit Milestone Certificate To: 2016 ESA PROJECT COMPANY, LLC (Buyer) This Deposit Milestone Certificate, dated ________, 201_, is given pursuant to paragraph (c) of the definition of Deposit Milestone Requirements in the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Certificate. This certificate is provided in respect of a Tranche with aggregate System capacity of ______ kW (the “Subject Tranche”). Seller hereby certifies that in respect of the Subject Tranche: (1) Seller, on Buyer’s behalf, has received approval of site plans and single-line drawings from one or more PPA Customers for Facilities with aggregate System Capacity equal to or greater than the aggregate System Capacity of such Subject Tranche (and all previously-invoiced Tranches); (2) Seller has received all materials required for the commencement of fabrication of Bloom Systems with aggregate System Capacity equal to or greater than the aggregate System Capacity such Subject Tranche, and all materials required as of such time to allow for completion of such fabrication in order to achieve Commencement of Operations of such Facilities (and all previously-invoiced Tranches) within ninety (90) days hereof; and (3) Each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Seller’s Deposit Milestone Certificate. Exhibit F-1
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This Deposit Milestone Certificate may be relied upon by Buyer. Signed for and on behalf of BLOOM ENERGY CORPORATION ……………………………………………………………………… By: ……………………………………………………………… Name:……………………………………………………………….. Title:…………………………………………………………………. Exhibit F-2
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Exhibit G Form of Tranche Notice To: 2016 ESA PROJECT COMPANY, LLC (Buyer) This Tranche Notice, dated ________, 201_, is given pursuant to Section 2.2 of the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Tranche Notice. Seller hereby notifies Buyer that Seller expects that Facilities with aggregate System Capacity of __kW will be included in a Tranche that Seller reasonably expects will satisfy the applicable Deposit Milestones in such the [1st / 2nd / 3rd / 4th] Calendar Quarter of 201_. Seller hereby certifies that, as of the date of this Tranche Notice, no Seller Default has occurred and is continuing under the PUMA. This Tranche Notice may be relied upon by Buyer. Signed for and on behalf of BLOOM ENERGY CORPORATION By: __________________________ Name: __________________________ Title: __________________________ Exhibit G-1
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Exhibit H Form of Seller’s Certificate of Installation To: 2016 ESA PROJECT COMPANY, LLC (Buyer) This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, amended and restated as of June 26, 2017, amended and restated a second time as of March 16, 2018, and amended and restated a third time as of September 26, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Certificate. This certificate is provided in respect of the Facility(ies) set forth on Exhibit A hereto. Seller hereby certifies that in respect of each Facility: 1. Each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA; 2. Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility; 3. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA; and 4. Each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Seller’s Certificate of Installation. Exhibit H-1
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This Certificate may be relied upon by Buyer. Signed for and on behalf of BLOOM ENERGY CORPORATION ……………………………………………………………………… By: ……………………………………………………………… Name:……………………………………………………………….. Title:…………………………………………………………………. Exhibit H-2
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ATTACHMENT A COMPLETED FACILITIES Table 1 Facility List Serial No. Location of Facility Unit System Capacity Model (kW-AC) Exhibit H-3
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Exhibit I Assignment Agreements Updated as of: September 26, 2018 1. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project Company and Buyer, dated as of April 26, 2018 2. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project Company and Buyer, dated as of June 22, 2018. 3. That certain Assignment and Assumption Agreement, by and between 2017 ESA Project Company and Buyer, dated as of June 30, 2018. 4. That certain Assignment and Assumption Agreement, by and between 2017 Fuel Cell Operating Company I and Buyer, dated as of September 26, 2018. Exhibit I-1
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Exhibit J Seller Corporate Safety Plan Seller will maintain and adhere to a Seller Corporate Safety Plan at all times during the term of this Agreement. Such plan will be maintained, in writing, at Seller corporate headquarters and will include, without limitation programs with respect to: . Contractor Environmental Health & Safety Program . Injury and Illness Prevention Program . Heat Illness Prevention Program . Emergency Action and Fire Prevention Plan . Hazard Communication Program . Corporate Electrical Standard – Specific Electrical Safe Work Practices . Electrical Safety Awareness . Lockout/Tagout . Fall Protection Program (Working at Heights) . Ladder Safety Program . Powered Industrial Trucks (PIT) . Hoist Safety Program . Personal Protective Equipment (PPE) . Respiratory Protection Program . Hearing Conservation Program . Hand and/or Powered Tools Safety Program . Hot Work Process . First Aid / CPR Program Exhibit J-1
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Exhibit K Subcontractor Quality Plan Seller will adhere to the following standards and processes as applicable when engaging subcontractors for performance under this Agreement. . General contractors will be subject to the terms and conditions set forth in The American Institute of Architects Document A107 – 2007 as amended in certain cases . General contractors are required to complete a Bloom Energy Contractor Qualification Training Program . General contractor superintendents and foremen must be certified and qualified by Seller to be on site . Standard safety protocols will be observed at all times: . Site superintendents are OSHA30 certified . Seller superintendents ensure general contractors follow all local and state OSHA and owner requirements . Confirmation of “Injury and Illness Prevention Program” . Seller included in the ISN program – 3rd party safety evaluation . A project superintendent assigned by Seller will review subcontractor work according to a standard site verification check list . Contractors will submit Contractor Quality Guarantees for each site providing written verification of points of assurance including torques per site, Megger testing and line flushing . Prestart verification conducted for all sites to review and confirm the quality of subcontractor work . Prior to commencement of operations, Seller conducts an “OK to Start” meeting during which subcontractor quality of work is reviewed and confirmed as resolved . All incidents are logged in a database and reviewed on an ongoing basis by Seller quality management as well as at the OK to Start meeting . Quarterly business reviews conducted with general contractors to formally review incident data and mitigate process and workmanship issues. Exhibit K-1
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Exhibit L Projected Tolling Rates [***] PPA Projected Tolling Rates Period* $/kWh [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] Exhibit L-1 [***] Confidential Treatment Requested
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[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] Period 1 commences on the Commencement of Operations Date of the applicable Facility and extends until (and including) the first December 31 or June 30 to occur following the six-month anniversary of such Commencement of Operations Date (e.g., for a Facility with a Commencement of Operations Date occurring on September 15, 2018, Period 1 extends until June 30, 2019). Subsequent Periods follow, in each case extending until (and including) the subsequent December 31 or June 30. Exhibit L-2 [***] Confidential Treatment Requested
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Exhibit M Parties’ Managers and Service Fees Seller’s Initial Operations Manager: [***] Buyer’s Initial Buyer Managers: [***] [***] Service Fees: Calendar Months since Rate Commencement of Operations ($/kW) for the applicable Facility [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] Exhibit M-1 [***] Confidential Treatment Requested
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In addition, Services Fees for such Facility shall be increased by an amount equal to [***] of rated capacity of the Battery Solution if such Facility includes a Battery Solution, and [***]. In addition, from and after the [***] calendar month after Commencement of Operations for a Facility, Services Fees for such Facility shall be increased by an amount equal to: - [***] per AOM per calendar month; - [***] of System Capacity per calendar month if such Facility includes a Low-Pressure Gas Booster; - [***] per UPM per calendar month if such Facility [***]; - [***] per UPM per calendar month if such Facility [***]. Exhibit M-2 [***] Confidential Treatment Requested
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SCHEDULE 3.4 COMMISSIONING PROCEDURES Seller will perform the following activities in connection with the commissioning of each Facility, to the extent necessary to cause such Facility to achieve Commencement of Operations: . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] . [***] Schedule 3.4 [***] Confidential Treatment Requested
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SCHEDULE 4.2 OPERATION AND MAINTENANCE PROCEDURES Seller will perform the following operation and maintenance activities for each Facility, to the extent necessary to cause such Facility to perform in accordance with the Warranty Specifications: . Annual maintenance activities: . Check Surge Protection Device and replace as necessary . Replace main blower filter element . Replace AC unit filter element if applicable . Replace auxiliary blower filter element . Remove any debris and vacuum inside of each cabinet . Remove any debris from the exterior of cabinets . Check all FCM hotbox enclosures for any leaking or cracks . Replace door filters . NG conditioning canister replacement . Site obligations: . An e-mail announcement of a service appointment will be sent to address(es) specified by the client informing of a service visit in advance of a service visit . Field Service personnel will sign in at a security office as required by client . Field Service personnel will safely and securely maintain and repair the systems as needed in accordance with our established and released procedures . Xxxxx XX and EH&S will work with clients to fulfill requirements for certification of drug testing, training, and other Environmental Health & Safety (EH&S) procedures . Site visit protocols: . Works with customers and Product Development to resolve issues . Provides detailed documentation for each maintenance element performed . Inspection of installed equipment to ensure peak performance . Inspection of all components to ensure proper operation within product and environmental specifications . Clearly and professionally interact with customer regarding status of site visits, performance of their systems and general fuel cell education . Spare Parts . Bloom Energy Product Support maintains a list of all spare parts including field replaceable units (FRUs) and consumables for each of its commercial products . Spare parts are stocked in localized third party logistics depots in each service zone Schedule 4.2-1
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. The most common and most critical parts are stocked in each local depot and replenished on a weekly schedule . Parts not stocked in localized depots are dispatched from our Milpitas, CA warehouse via FedEx or other carriers and couriers . Failure Response Protocol: RMCC RMCC Alarm Alarm troubleshooting Field Services Product Support Problem Problem resolution at the Remote Resolution of the customer site Resolution problem Handles complex issues and escalations and Confirm optimum FS dispatch performance Performance Handles site related issues Improvement Performance Monitoring Close Service Requests and improvement Escalations to Engineering and product improvements . Emergency Response Protocol: . Contact lists of BE personnel to be contacted during normal business hours and during off hours (24-7-365 emergency escalation path) are provided for each region where Energy Servers are located in order to remedy situations posing a risk to persons or property . Remote shutdown from Bloom RMCC if required . Emergency power off button provided onsite . Remote monitoring: . 24/7/365 performance monitoring and control of fleet . 1st level troubleshooting . Cross-functional interface with engineering, software, controls, quality . Optimize performance . Support new customer site start-ups . Customer performance analysis – daily . Standards Compliance: . Complies with Rule 21 interconnection . ANSI/CSA FC 1: Stationary Fuel Cell Power Systems – Safety . IEEE 1547 – Standard for Interconnecting Distributed Resources with Electric Power Systems . NFPA 853 – The Standard for Installation of Stationary Fuel Cell Power Systems Schedule 4.2-2
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. NFPA 70 – The National Electrical Code . NFPA 54 – The National Fuel Gas Code . Subcontracted Services. The following may in some cases be performed by subcontractors: . Water DI system replenishment . STS and transfer switch maintenance and repair . Some annual maintenance and upgrade work . Filter delivery, replacement, removal . High Voltage transformer and switchgear maintenance . Circuit breaker and similar maintenance . Battery replacement . Some fuel cell module performance upgrades . NG conditioning canister replacement . Management Staff: . Customer Installations Group (CIG) – Turnkey design, engineering, procurement, permitting and installation . Services – Commissioning, operations and monitoring of servers . Customer Experience – Interface with customer . PPA Operations – Certain administrative duties . All Energy Servers are instrumented to securely record over 1000 data points per server and stored in a Data Historian that resides in a Secure Co-located Data Center and Backed Up for data recovery . CIG and Service employees are subject to drug tests, background checks and other screening protocols based on customer site requirements . Bloom Energy maintains a Code of Safe Practices and ensures that copies are provided to all applicable field service technicians and includes: . Injury and illness prevention program . Required Personal Protection Equipment (PPE) . Corporate EH&S Standard . Proper use of Powered Industrial Trucks . Contracted Crane Operations . Ladder safety program . Electrical Safety and Lock-Out Tag-Out (LOTO) . Fall protection . First Aid/CPR program . Contractor EH&S program . Bloom Energy Safety Commitment Schedule 4.2-3
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. SCHEDULE 4.6 APPROVED MAJOR SERVICE PROVIDERS Core States Group / CoreStates, Inc. 0000 Xxxxxx Xxxx Xxxxx Xxxxx 000 Xxxxxxx, XX 00000 909.467.8907 xxx.xxxx-xxx.xxx Newco Construction of America, Inc. 00000 Xxxxx Xxxxxx Xxxxx Xxxx, XX 00000 352-735-3877 xxx.xxxxxxxxxxxxxxxxx.xxx PacifiCore Construction 0000 Xxxx Xxx Xxxxx 0X Xxxxxx, XX 00000 657-859-40505 xxx.xxxxxxxxxxxxxxxxxxxxxx.xxx Rubicon Professional Services 000 Xxxxxxx Xxxx Xxxxx #00 Xxxxxxxxxx, XX 00000 732-832-2975 xxx.XxxxxxxXX.xxx Schedule 4.6